Kristen Wilson lost her son Jayson Withers in 2014 when a corrections officer at the state prison in Pendleton shot and killed him. She filed a wrongful death lawsuit in federal court against Charles Frates for making that shot. She lost the case at trial in Pendleton in early August.
Now the state is asking her to pay more than $11,000 for the cost of defending the lawsuit.
Withers was an inmate at Eastern Oregon Correctional Institution, and on Aug. 29, 2014 he and another inmate attacked a third in an outdoor prison yard. Corrections officer Charles Frates was in the gun tower and shot Withers, killing him. He was 26. Frates never fired a warning shot.
Andrew Hallman, Oregon assistant attorney general, this past Aug. 28 provided the U.S. District Court of Oregon with a bill for $11,445.83 for defending the case and asked Wilson and the estate of Withers to pay the tab. The amount covers almost $10,500 for depositions and transcripts, more than $300 for witness fees and even $135.24 for 14 binders from Office Depot for jurors, court staff and the two parties. Hallman stated the prevailing party should receive the costs.
Wilson’s attorney, Michelle Burrows of Hillsboro, on Sept. 6 filed an objection to the bill. While courts usually award costs, she stated in the document, the losing side may “show circumstances sufficient to overcome the presumption favoring an award of costs.”
Burrows explained Withers “had virtually no assets” when he died, and his mother opened the estate for the purpose of filing the lawsuit. Wilson and her ex-husband, Jack Withers, paid more than $25,000 for the costs of the litigation.
Burrows in particular objected to the following: $1,825.69 for the depositions of family members, $3,239.73 for the depositions of inmate witnesses and $1,319.60 for expert depositions. Burrows asked the court to deny the bill in its entirety, but if nothing else, to deduct those costs.
She also said the state should pay all the expenses for expert witness Jeremy Bauer, owner of Bauer Forensics of San Francisco. He recreated the shooting, including images of what Frates saw through the rifle scope and the graphic showing Frates was 350 feet away from Withers. Bauer charged about $9,800 for his time and work, but Burrows stated the defense sought his deposition and additional material, not her client. The state paid about $2,360 to Bauer, according to Burrows, and should pay the remaining $7,455.
Burrows also claimed the parties had a deal to split costs, but now Frates and his attorney with the state seek to have Wilson pay for all of it “despite prior agreement to the contrary.”
Burrows also asserted the high cost could discourage others from going forward with legitimate claims against law enforcement.
Wilson declined to talk for this story, but in a Sept. 6 declaration to the court stated she filed the lawsuit because the Oregon Department of Corrections was not forthcoming about what happened to her son and appeared to be hiding information.
“I believed that the shooting was unjustified,” Wilson stated in the document, “and I realized that the only way to find any information was to sue.”
The East Oregonian left a message for Burrows, but she did not respond before deadline. Burrows noted in court documents the “jury deliberated for nearly two days and according to assessments following trial it was a difficult, if not extremely close decision,” and Frates “likely provided false testimony” about the shooting.
Given all this, Burrows requested the court to deny the costs.
The most recent filing came Sept. 19 from Hallman. He opposed Burrows’ request for the state to pay all of Bauer’s fees.