ELLEN ROSENBLUM

FREDERICK M. BOSS

Attorney General

Deputy Attorney General

DEPARTMENT OF JUSTICE
CRIMINAL JUSTICE DIVISION

May 24, 2016
Honorable John Hummel
Deschutes County District Attorney
Deschutes County District Attorney's Office
1164 NW Bond St.
Bend, Oregon 97701
Re: Oregon Department of Justice Investigation of the Death of Edwin Mays
Dear Mr. Hummel,
On March 23, 2015, you asked the Criminal Justice Division of the Oregon Department
of Justice to assume the responsibility of investigating the death of Edwin Mays and to prosecute
the case if criminal charges were warranted. In response to your request, we reviewed the
investigation previously conducted by the Deschutes County Sheriff's Office (with the assistance
of the Bend Police Department), interviewed eighteen witnesses, 1 observed Mr. Mays' behavior
and the conduct and comments of corrections deputies on video surveillance tapes taken at the
Deschutes County Adult Jail, visited the jail, reviewed all relevant policies of the sheriffs office,
and consulted with medical and drug treatment experts.2 Based on our review, we have
concluded that there is insufficient evidence to prove beyond a reasonable doubt that any
member of the Deschutes County Sheriff's Office engaged in criminal conduct related to Mr.
Mays' death.
FACTUAL SUMMARY
On December 14, 2014, Edwin Mays was arrested by the Bend Police Department
relating to his conduct during a traffic stop. His half-brother, Adam Davenport, was the driver of
the car and was also arrested. Mr. Mays appeared to be under the influence of a central nervous
system stimulant such as methamphetamine, but he denied taking any drugs. He was able to
walk, was responsive to the officers, and did not appear to need any medical attention.
We interviewed corrections deputies who were on duty at the relevant time, other jail employees, several inmates
who observed Mr. Mays while he was in the jail, the medical examiner who performed the autopsy, and other
medical professionals. We attempted to interview Sgt. Brian Bishop and Deputy Amanda Parks, but they declined
our request.
1

We also consulted with plaintiffs counsel in Mays, et al. v. Deschutes County, et al., U.S. District Court Case No.
6: I 5-cv-00898-AA to ensure that we had reviewed all relevant materials.
2

2250 McGilchrist St SE, Suite 100, Salem, OR 9730297301
Telephone: (503) 378-6347 Fax: (503) 373-1936 TTY: (800) 735-2900 www.doj.state.or.us

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Mr. Mays was booked into thejail shortly after 5:00 PM. Heremained in the holding cell
areaoverthe next several hours, wherehe was kept underobservation by the corrections

deputies on duty. ^His behavior was consistent with aperson under the inftuence of
methamphetamine, although he denied using the drugor needing medical attention. He was
described by observers as extremely high; onecorrections deputy described him as oneof the
most high persons he had ever seen. Mr. Davenport, who was housed in the same cell for a

period oftime, toldcorrections deputies thathethought Mr. Mays should goto the hospital, but
did not answer whenaskedwhy he had that concern. Mr. Mays himselftold the corrections
officers thathe did not needto go to the hospital. During that time, Mr. Mays remained
responsive to questions, ate food, and drankwater. His conditionseemed to be following the
typical course of methamphetamine intoxication and withdrawal that the correctionsdeputies had
observed in hundreds of other inmates who did not need medical attention.

At different points in the evening, one of the corrections deputies discussedMr. Mays'

condition with his supervisors todecide the appropriate course ofaction. ^ Based ontheir
trainingand experience, as well as their own observations of Mr. Mays, the supervisors believed
that Mr. Mays would detoxify safely firom the methamphetamineand that the corrections
deputies should continue to regularly monitor Mr. Mays' behavior.
Mr. Mays' activity eventually changed firom hyperactivity to sitting down, then
ultimately lying on the floor. That behavior is consistent with the normal progression of a person
detoxifying firom methamphetamine (which typically includes a transition firom hyperactivity to

sleep). Corrections deputies continued toregularly check on Mr. Mays. ^ When deputies
checked on Mr. Mays at 8:54 PM, he was unresponsive and had fluid coming firom his mouth.
The corrections deputies immediately called Bend Fire and Rescue and began giving emergency
medical attention, including providing CPR and using a portable defibrillator. Medics responded
and administered care, but Mr. Mays died in the cell. At autopsy, the cause of death was
determined to be "Methamphetamine Toxicity."
We consulted with several medical professionals regarding the incident. They included
the doctor who performed the autopsy as well as emergency room and drug treatment specialists.
We confirmed &at Mr. Mays' behavior was consistent with a person who is under the influence
of methamphetamine. We also learned that individuals are unlikely to suffer a fatal overdose
' The Intoxicated Inmate Policy MD-6 provides thattheholding cells canbe used for"observation purposes" while
the jail staff determines whether to house or release the person. This policy provides that during the first four hours
of observation, the staff is to wake up the inmate every hour. Ifthe staff is unable to wake the inmate, EMTs are to
be called.

'' We learned during our investigation that insituations where there are non-emergency health concerns, corrections
deputies are expected to provide information to their supervisor for the supervisor to determine how to proceed.

^The jailvideo reveals that over the course ofthe evening, deputies made mocking and disparaging remarks about,
and imitations of, Mr. Mays in his intoxicated state. They were also observed watching a football game at various
times. That conduct was considered as part ofthe overall analysis of the circumstances in the case, but ultimately
did not change the conclusions reached.

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from the ingestion of methamphetamine because the bodymetabolizes the methamphetamine

over time and the person in effect "sleeps itoff."^ Additionally, the fact that aperson had
overdosed on methamphetamine would not be obvious to an observer because the lethal effects

of the stimulant come aboutsuddenly. Thedrugtreatment and medical experts opined that the
deputies' decisionto continually observe Mr. Mays was medically appropriate under the
circumstances. The consensus opinion of all of the experts was that there is no way to know
whether earlier medical intervention would have made any difference in the outcome to Mr.
Mays.
LEGAL ANALYSIS

In reviewing whether any member of the Deschutes County Sheriff's Office engagedin
criminal conduct related to Mr. Mays' death, we evaluated whether sufficient evidence exists to
prove beyonda reasonable doubtthat an employee committed any of the following crimes:
criminally negligent homicide (ORS 163.145), criminal mistreatment in the seconddegree
(ORS 163.200), officialmisconduct in the first degree(ORS 162.415), and official misconduct
in the second degree (ORS 162.405). As described below, our investigation did not reveal
evidence that would support a criminal prosecution.
A. Criminally Negligent Homicide

To prove the crime of criminally negligent homicide in this case, the state must show that

a deputy, with criminal negligence, caused Mr. Mays' death.® "Criminal negligence" means that
a person fails to be aware of a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The risk must be of such

nature and degree that the failure to be aware of it constitutes a gross
deviationfrom the standard of care that a reasonable person would
observe in the situation.

®No methamphetamine overdose deaths had ever occuired atthe Deschutes County Adult Jail.
' We do not specifically address the crimes ofmanslaughter inthe first orsecond degree in this letter, each ofwhich
requires proofthat a person recklessly caused the death of another, because we concluded thatwe couldnot prove
criminally negligent homicide, whichrequires that a personact withthe lowerculpable mental state of criminal
negligence in causingthe death of another. See State v. Skelton, 153 Or App 580, 584 n 2,957 P2d 585, rev den,
321 Or 448, 964 P2d 1030 (1998) (noting that criminally negligent homicide is a lesser included offense of
manslaughter in the first and second degree when committedrecklessly).

' We do not specifically address the crime offirst-degree criminal mistreatment in this letter, which requires proof
of a knowing or intentional mental state, because we concluded thatwe couldnot prove second-degree criminal
mistreatment, which requires the lower culpable mental state of criminal negligence. SeeStatev. Baker-Kroffi, 348
Or 655,239 P3d226 (2010) (noting that, as relevant here,the elevated culpable mental statedistinguishes firstdegree criminal mistreatment from second-degree criminal mistreatment).

' ORS 163.145 provides, inrelevant part;
"(1)Aperson commits thecrime of criminally negligent homicide when, with criminal negligence, theperson
causes the death of another person."

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ORS 161.085(10). Inturn, "cause" means "1: to serve asa cause or occasion of: bring into
existence: MAKE (careless driving~s accidents) * * * 2: to effect bycommand, authority or
force." Thus framed, thequestions for purposes of criminally negligent homicide are whether
the deputies failed to be aware ofa substantial and unjustifiable risk thatMr. Mays would die
froma lethal ingestionof methamphetamine and whetherthe failure to be awareof such a risk
brought about his death.

As to the first question, given all of the facts in the case, the deputies' failure to recognize
thatMr. Mays hadingested a lethal amount of methamphetamine was not criminally negligent.
Thedeputies involved had seenmanyotherpeople experience methamphetamine withdrawal
safelyafter exhibitingbehaviorsimilarto that of Mr. Mays. In fact, there have been no
methamphetamine overdose deaths at the Deschutes County Jail. Moreover, medical and drug
treatment experts indicated that death from the acute ingestionofmethamphetamine is rare given

the manner inwhich the body metabolizes the drug.^^
Similarly, the state could not prove beyond a reasonable doubt that the actions of any
deputycaused Mr. Mays' death. In this case, the autopsyrevealedthat Mr. Mays' ingestionof a
lelhal amount of methamphetamine causedhis death. Accordingto the medical experts with
whom we spoke, there is no way to determine if earlier medical intervention would have
prevented his death given the amount of methamphetamine he had ingested. Accordingly, our
investigationdid not reveal sufficient evidence to warrant a charge of criminally negligent
homicide.

B. Criminal Mistreatment in the Second Degree

To prove the crime of criminal mistreatment in the second degree in this case, the state
must show that (1) the corrections deputies had a legal duty to provide care for Mr. Mays and (2)
the deputies acted with criminal negligence in withholding necessary and adequate physical care

ormedical attention from Mr. Mays.^^ For thereasons that follow, we have concluded that the
evidence, when viewed in the context of our burden of proof, is not sufficient to prove the crime
of second-degree criminal mistreatment.

State V. Murray, 343 Or 48,52, 162 P3d 255 (2007), citing ThirdNew Int'l Dictionary 356 (unabridged ed. 2002).

" Methamphetamine users typically die from thelong-term effects ofchronic use.
ORS 163.200 provides, in relevant part:
"(1) A person commits the crime of criminal mistreatment in the second degree if, with criminal
negligence and:
"(a) In violation of a legal duty to provide care for another person, the person withholds necessary
and adequate food, physical care or medical attention from that person[.]"

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Although thedeputies clearly had a legal duty to provide allinmates, andtherefore Mr.

Mays, with medical care,^^ the evidence does not demonstrate that the deputies acted with

criminal negligence inwithholding necessary medical care orattention from Mr. Mays. First,
the deputies correctly identified Mr. Mays' behavior as consistent with a person who is under the
influence ofmethamphetamine. Second, the deputies followed their policies in choosing to
closely observe Mr. Mays complete the detoxification process for methamphetamine. Third,
monitoring a person who is detoxifying from methamphetamine through repeated visual
observations is the appropriate medical standard of care. Fourth, Mr. Mays' behavior was not
inconsistent with someone who was undergoing thenormal detoxification process, which
progresses from hyperactivity to sleep. Fifth, there is a lowriskofoverdose from theingestion
of methamphetamine. Sixth, the deputies were not aware of anotherinstance in which an inmate

suffered anadverse medical outcome while detoxifying from methamphetamine. Lastly, the
deputies appropriately sought medical attention for Mr. Mays when his condition clearly
indicated a medical emergency. Given these circumstances, we do not believe that the state

could prove beyond a reasonable doubt the crime of criminal mistreatment in the second degree.
C. OfficialMisconduct in the First Degree
Official misconduct in the first degree requires proof that a public servant, with the intent
to obtain a benefit or to harm another, knowingly failed to perform a duty imposed on the person
by law or one clearly inherent in the office. As a threshold matter, we have determined &at the
deputies are public servants. See ORS 162.005(2)(a) (defining a public servant as a public
official) and ORS 244.020 (defining a public offici^ as, among others, any person who is
serving a political subdivision of the state or public body as an employee or agent). Moreover,
as we noted earlier, the deputies have a legal duty to provide emergency medical care. However,
for the reasons discussed above, our investigation did not reveal sufficient evidence that the
deputies knowingly failed to perform their duty to provide medical care to Mr. Mays; that is,
they did not realize that Mr. Mays had taken a lethal dose ofmethamphetamine and did not know
that he needed medical care. The deputies did seek medical care when they realized Mr. Mays
was unresponsive. Additionally, there is no evidence that the deputies acted with a motive to
benefit themselves or to harm Mr. Mays. As a result, we have concluded that we could not prove
the crime of first-degree official misconduct beyond a reasonable doubt.

" See, e.g., ORS 169.076 (requiring local correctional facilities toprovide for emergency medical care).
ORS 162.415 provides in relevant part:
(1) A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit
or to harm another:

(a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly
inherent in the nature of office[.]"

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D. OfGcial Misconduct in the Second Degree

The crime of official misconduct in the second degree is committed when a public
servantknowingly violates a statute relatingto the public servant's officeAs discussed

previously, there is insufficient evidence thatthedeputies knowingly violated anystatute by
failing to provide emergency medical care for Mr. Mays.
I

CONCLUSION

In conclusion, our investigation has not revealed evidence of conduct by the deputies that
wouldjustify criminal prosecution. Ourreview was limited to an application of Oregon criminal
law. Weexpress no opinionwhether any civilor administrative process mightprovide sanctions
or remedies in connection vdth Mr. Mays' death.

Thankyou for giving us the opportunity to review this case. If you have any questions
regarding our review, please feel free to contact me.
Sincerely,

Victoria Roe

Sr. Assistant Attorney General
Oregon Department of Justice
Criminal Justice Division

Cc: Darryl Nakahira

ORS 162.405 provides, in relevant part:

(1) A public servantcommitsthe crime of official misconduct in the seconddegreeif the person
knowingly violates any statute relating to the office of the person.