By Jayme Fraser

The Enterprise

VALE – A state judge last week sealed an Oregon State Hospital report finding Anthony Montwheeler is unfit to stand trial for murder, creating uncertainty about whether the public will ever see details of the psychological evaluation.

Multnomah Circuit Court Judge Thomas Ryan screened the report from public access after the Malheur Enterprise sought a copy from the official file in Malheur County Circuit Court.

State hospital officials submitted the report in January after examining Montwheeler.

“The information in the report is of a highly personal nature, as it details defendant’s past and present mental health and mental health treatment,” wrote Ryan, who took over the case after two local judges stepped aside because of previous dealings with Montwheeler. “While the court appreciates that there could be interest in the report, nothing before the court establishes that the public interest requires disclosure of the report.”

Ryan stepped in after the newspaper sought the document from Marilee Aldred, state trial court administrator in Vale.

Montwheeler, 50, faces two counts of aggravated murder and other charges, accused of killing two people and injuring a third in January 2017.

That happened three weeks after he was released from the state hospital, where he was committed in 1997 after being found guilty except for insanity for the kidnapping of his first wife and their 3-year-old son in Baker City. To win his release from the state hospital, Montwheeler told the state Psychiatric Security Review Board that he had faked mental illness for 20 years to avoid prison. A state psychiatrist told the board that Montwheeler displayed no signs of a mental illness that qualifies for the insanity defense. In that circumstance, state law requires the patient be released from compulsory treatment and the board’s custody.

Authorities last October returned him to the state hospital for a short time to be evaluated after another state judge said she was concerned about Montwheeler’s mental capacity. Ryan will now consider the report to determine whether to proceed with trying Montwheeler, but a hearing scheduled for March has been canceled and not rescheduled.

Les Zaitz, Enterprise publisher, said the newspaper sought the report to learn how state hospital doctors concluded Montwheeler was unfit for trial when the same hospital earlier concluded he had been faking a mental illness.

“This is about holding government accountable for decisions that have profoundly affected the community,” Zaitz said.

After the Enterprise requested the hospital report, Montwheeler’s attorney, David Falls, sought a protective order to bar release of the 37-page document. In a separate letter to Ryan, Falls said the evaluation belongs to the state hospital and that it can’t be publicly released because it is a medical record.

He said Montwheeler opposes any release and asserts his privacy rights over the evaluation as well as other documents, such as juvenile and family records.

“Disclosure to the news organization to enable the newspaper to sell more newspapers would constitute an unreasonable invasion of the defendant’s privacy,” Falls wrote.

He didn’t respond to a request for comment on the judge’s latest order.

Malheur County District Attorney David Goldthorpe also urged Ryan to keep the document away from the public.

“Release of this report and its contents prior to it being offered as evidence in court would do serious harm to the court’s ability to impartially decide this important procedural issue,” he wrote.

On Monday, Goldthorpe said, “I think the whole report will be public record after our public hearing.” He said he now expects that to happen in June.

After Ryan issued his sealing order, the Enterprise sought permission from the judge to submit information about the public interest in seeing the report. In a Thursday letter to the Enterprise, Ryan said he is “happy to consider” a written response from the newspaper.

Ryan’s order leaves the community with little information about why the state hospital concluded, as stated in other court filings, that Montwheeler has a mental illness that makes him unable to help Falls prepare his case, make decisions about the case or provide accurate information to the court.

That determination is separate from an evaluation of whether Montwheeler can use the insanity defense, which would consider his mental state at the time of the alleged crimes. Falls has signaled Montwheeler may assert that defense.

Other Oregon judges have found that a psychological evaluation is a public record that must be disclosed if the document was used by the judge to reach a decision.

For instance, Tillamook County Circuit Court Judge David Hantke ruled in 2004 that a psychological evaluation had to be released to The Oregonian in Portland because the state Constitution guarantees the public’s right to open courts.

The decision cited two conclusions.

First, Hantke wrote that any privacy privilege was waived when the report was submitted to the court and that the defendant understood the evaluation was “for the court’s use” and “intended to be disclosed.”

Second, he concluded that even if a patient didn’t waive a privilege and the document wasn’t discussed in open court, “the Oregon Constitution requires that the reports be unsealed” because the evaluation was used by the judge.

“What would have been public in a court hearing should not be allowed to be kept secret when the court relied on the same information in reaching its decision,” Hantz wrote.
Last year, records similar to the report now under seal were released to the Enterprise under orders of Attorney General Ellen Rosenblum. Acting on the newspaper’s petition under the state public records law, Rosenblum said the Security Review Board had to release 600 pages documenting its handling of the Montwheeler case.

The agency initially balked at the order and instead sued the newspaper to block access to the records. Gov. Kate Brown subsequently ordered the suit dropped and the records released.