Former COCC instructor Thomas Bray looked on in a blue jail uniform, hands and feet shackled – his first court appearance out of a suit and tie – as his attorney argued Monday that a ballot measure used by prosecutors to seek an 83-year jail term for his rape conviction is unconstitutional.
Despite the lengthy sentence he could face, Bray wore a broad smile for family and friends as he entered the courtroom for a scheduled 3-hour sentencing hearing before Deschutes County Circuit Judge Stephen Tiktin. Later, Bray broke down in tears as his brother, mother and family friend begged the judge for leniency in his sentencing.
Tiktin, who heard the case after Bray waived his right to a jury trial, found him guilty July 30 on all six charges involving a woman he met on Match.com in February of last year, but acquitted him on five counts involving an ex-student he briefly dated while teaching at COCC.
Bray, 38, has been jailed since his conviction on two counts each of first-degree rape and sodomy, and single counts of fourth-degree assault and strangulation.
Cameras were not allowed in court for the non-jury trial, in which Bray was found guilty of the rape of a woman he took out for a date in downtown Bend. The two then returned to his apartment in the Franklin Crossing building, where after a glass of wine he assaulted her for several hours.
The legal arguments took all day, off and on, so the sentencing didn't occur; the sentencing hearing is now scheduled to resume at 9 a.m. on Sept. 28th.
Portland defense lawyer Stephen Houze argued that the use of Measure 73, a minimum criminal sentence measure approved by voters in November 2010, is unconstitutional because Bray was unaware he would be sentenced under it and because it covers not just sex crimes but DUII arrests as well.
Houze also said he believes the prosecution’s suggested sentencing of 83 years and four months on six counts of rape, sodomy, strangulation and assault is cruel and unusual punishment, because it’s not proportional to the crime committed or his client’s background.
“It was intended to deal with people who were the worst of the worst – people who had already had a shot at the system,” Houze argued.
“It’s someone’s idea of what an appropriate law ought to be,” the lawyer said. “The voter-approved measures are often in rough form. We get these Christmas-tree ballots, where there’s something for everyone.”
Houze said he’s unsure if it’s the first court challenge to the measure’s legality, but if it is, “then so be it.”
And he said it’s as if the voters were tired of shoplifters and wanted to go after them, resulting in a 10-year sentence.
As for the specific case, Houze said, “The state is seeking a greater-than-life sentence. This is unconstitutional and un-proportional sentencing.”
“This (prosecution request) seeks to impose an extreme sentence,” he said. “it’s equivalent to 10 years in prison for shoplifting.”
"There's no question that 10 years in prison would be a disproportional sentence for someone who shoplifted -- that's not what we're comparing," said Tiktin. "We're comparing a repeat major sex crime offender with other potential penalties for other major crimes."
"There isn't much more that's potentially dangerous to the public than major sex crime offenders," he added.
Responding to Houze, Tiktin said, “I don’t care what the state is seeking. What I care about is whether the 25-year minimum sentence is constitutional.”
“They (the state is) asking the sentences be consecutive,” the judge said. “They are not arguing it has to be that way.”
Deputy District Attorney Brigid Turner argued that under Measure 73, “a ‘previous conviction’ includes a conviction for a separate criminal episode in the same sentencing.” She said the measure defines repeat offenders differently for sex crimes vs. drunk drivers.
“Does 25 years shock the moral conscience of people after they’ve been convicted of multiple sex crimes?” the prosecutor asked the judge. “That’s the question that needs to be asked.”
As for whether Measure 73 offers a proportional sentence, Turner said it needed to be proved constitutional first: “It seems like we’re getting the cart ahead of the horse.”
The prosecutor also tried to refute Houze’s argument regarding Bray being unaware he was subject to sentencing under Measure 73.
“It’s not the state’s obligation to inform the defense about new laws,” Turner told Tiktin. “I don’t think we needed to give notice – but we did anyway. If you look at the indictment, it says, ‘The state further alleges this is a separate count.”
The judge came back from a brief recess and gave the court's thoughts on the arguments made by Houze about Ballot Measure 73.
Tiktin told the courtroom the measure enforces stricter sentences for repeat sex crime offenders and repeat intoxicated drivers, and it locks up repeat offenders to keep us all safe.
"The measure is clear by its own language -- it clearly provides that a prior conviction can be in the same case as long, as it's a separate criminal act," said Tiktin.
"The text itself clearly makes the defendant fall within the statute if it's a separate criminal act," the judge added, then telling prosecutors they would have to prove that.
"The court found separate criminal acts during the trial," said Tiktin. "But as a fact-finder, the court is going to reopen the argument about them being separate crimes."
Tiktin said the state gets a chance to prove the counts did not arise through a continuous and uninterrupted act.
Pointing at Bray, District Attorney Patrick Flaherty told the courtroom, "Each time the defendant sodomized the victim, he had a separate, distinct objective. And each time the defendant raped the victim, he had a distinct criminal objective."
"He first rapes the victim, then there's a clear break, to the extent where the defendant goes to the kitchen and eats a bowl of cereal, orders her to clean herself up -- then he sodomizes and rapes her again," Flaherty said.
"He had a conscious and unlawful, i.e. criminal objective. Under that analysis, there were four criminal episodes," Flaherty argued.
The judge took another brief recess at lunchtime and planned to hear more arguments from Bray's attorney when they reconvened in the afternoon.
Bray's mother, brother and family friend all addressed the courtroom.
His younger brother spoke to the judge, telling him how much he appreciated his brother Thomas and how he's guided his life throughout the years.
A family friend told the judge Bray was always like a big brother to her.
His mother's words brought Bray to tears a second time as she told Tiktin how her son acted like a second father to his younger siblings.
The mother of the victim in the case addressed the courtroom as well, asking the judge to lock up Bray so he can't hurt anyone else. She told Tiktin that Bray destroyed her daughter's life and took away the smile she once constantly had.
The mother also spoke of how the attack took away her daughter's ability to sleep and live on her own.