LH on SI cover

Martin Meyer's words:
Attached is an article I’ve written regarding the disclosure last spring of Mr. Heimlich’s involvement with the Washington State Juvenile Justice act when he was 15 years old and his subsequent self disqualification from the CWS.

1) I have no particular affiliation with OSU I only got interested in OSU baseball after a friend and client of mine took me to a game in Corvallis before this story broke.

2) I love baseball.

3) I am in my 30th year as a practicing lawyer in Thurston Co. WA. I represented 1000’s of youth in the early years of my practice accused of committing offenses ranging from Murder 2 to Minor in Possession of Tobacco.

4) My son is a Duck.
Here is the entire document.

Vigilante Journalism and Administrative Malpractice

The Troubling Case of Oregon State’s Luke Heimlich

By Martin D. Meyer

In their newly found eagerness to expose collegiate sports malfeasance, reporters risk overreacting to, or misrepresenting the legal nuances that surround the conduct of juvenile offenders. This is exactly what occurred in the case of Luke Heimlich, a baseball pitcher for Oregon State University.

The “lack of institutional control” in high-powered athletic programs in our nation’s universities has been well chronicled. It is impossible to defend the lack of administrative oversight shown in such infamous episodes as the Jerry Sandusky case at Penn State, the serial sexual assaults by members of Baylor University’s football team, or the gymnastics program at Michigan State. The generally pliant reporting by the sporting press facilitated such troublesome and indeed criminal behavior but these situations are not analogous to Heimlich, who was wronged by journalists who employed, and other journalists who continue to employ, legal terms applicable to adult criminal proceedings and completely inapplicable to the Washington juvenile offense context. This was compounded, and to a degree facilitated by, his university administration’s failure to understand these same distinctions. OSU was slow to come to Heimlich’s defense which forced him into the difficult decision to remove himself from the team when they were on the verge of playing in the College World Series. Uninformed journalists filled a vacuum created by administrative nonfeasance with sensationalized and misleading reporting using such terms as “sex crime,” “crime,” “conviction,” “convicted felon,” and “felony conviction” while speaking of a juvenile offense Mr. Heimlich was accused of committing in the state of Washington when he was 15 years old. These are terms solely applicable to adults charged with committing crimes, not juveniles.

On June 8, 2017, Portland’s Oregonian and its online platform OregonLive published an article by Danny Moran and Brad Schmidt, respectively the paper’s beat reporter for Oregon State athletics and an investigative journalist, titled “Luke Heimlich sex crime surfaces as Oregon State baseball nears College World Series.” In their story Moran and Schmidt describe how “a crime surfaced from a star player’s past.” The newspaper’s inflammatory and prejudicial characterization of Heimlich’s legal status bodes ill for the future of juvenile jurisprudence and its professed goals of rehabilitating youthful offenders.

The headline’s use of the phrase “sex crime” may have been effective at drawing attention to the story, but it was mistaken and its effect was turbocharged by the correlation to the team’s postseason prospects. That fact alone led some commentators on the newspaper’s website to charge that the external circumstance of Oregon State’s on-field success, and not any underlying judicial findings, stoked journalistic interest.

The story itself was replete with phrasing that completely miscast Heimlich’s actual standing before the law. Moran and Schmidt referred to his August 2012 “felony conviction” and questioned whether athletes who have “committed felonies” should be allowed to play for the university. They pondered the question of whether Oregon State should require applicants to the university “to disclose criminal conviction during the admissions process” and their story questioned the wisdom of “allowing convicted felons to enroll and play college sports.”

Moran and Schmidt, in a complete misreading of the actual court proceedings in Washington’s Pierce County, referred to Heimlich’s “first degree Class A felony” for child molestation. This error was compounded when the newspaper, anticipating the furor their coverage would precipitate, simultaneously published an “Editor’s Notebook” explaining “Why we published Oregon State pitcher Luke Heimlich’s felony conviction.” This essay, authored by Mark Katches, also referred to Heimlich’s “felony count of child molestation.”

In the tumult that followed, the university resisted calls to dismiss Heimlich from the team, but he withdrew from play so as not to become a distraction for his teammates at the College World Series. At the tournament in Omaha, #1 seed Oregon State finished in third place. More importantly, Heimlich, who before the disclosures was heavily reported to be a first round choice in the Major League Baseball draft scheduled that same week, was not selected in any of the three dozen rounds. This series of events did grave damage to the utility and promise of juvenile adjudication, especially within the education context.

Oregon State’s decision to admit Heimlich was fully consistent with federal guidelines issued by the Department of Education (DOE) on how to increase access to higher education. Had the reporters understood Washington law as it relates to juvenile offenders, or read and actually understood the 2016 US Department of Education report (“Beyond the Law”) provided by OSU spokesman Steve Clark, or the National Juvenile Justice Network’s “Caldwell study” they cite in their article, they should have given serious consideration to NOT publishing this article at all. Luke Heimlich is not now, nor has he ever been convicted of a crime, committed a felony, or possess a prior felony conviction. The Oregonian’s news coverage effectuated what Washington’s juvenile rehabilitation program was specifically trying to avoid in Heimlich’s case.

If the reporters from The Oregonian could have resisted their impulse to print a story when it would achieve maximum visibility, they might have had time to learn about the law in the state of Washington governing youthful offenders until age 18 as set forth in RCW 13.40 et. seq. The stated purpose of Washington’s Juvenile Justice Act (JJA) is to treat juveniles differently than adult offenders would be handled for the same crime. (See RCW 13.40.010 et. seq.) The statute’s more specific objective, and one central to the Heimlich case, is to avoid stigmatizing a youthful offender for the rest of his life. Providing rehabilitation and reintegration is an expressed goal of the JJA as set forth at RCW 13.40.010 (2) (f). This is the primary difference from the adult criminal arena where the sole purpose of the law is punishment of the offender. The state of Washington is always the plaintiff in a juvenile offender proceeding, or an adult criminal proceeding for that matter, because society’s aim is justice, not vengeance. Certain reporters and columnists for the Oregonian supplanted the prerogatives of the state of Washington and became unto themselves an illegitimate judge and jury by exacting vigilante vengeance against Heimlich through a rite of public humiliation. This has led to innumerable ill-informed commentators to do the same.

It was wrong and misleading for the Oregonian to use the words “criminal” and “felony” and similar terms when referring to Mr. Heimlich’s juvenile offender proceeding. Under Washington law, and as applicable to Heimlich’s case, juveniles are NOT considered criminals nor are they convicted of crimes. Rather, they are adjudicated of having committed offenses which would constitute a crime if committed by an adult. RCW 13.40.020 (21) specifically defines “Offense” and RCW 13.40.070 references a county prosecuting attorney’s authority to screen complaints as “offenses.” In such cases, offenders are not referred to as a “defendant” in relevant pleadings but are named as a “respondent.” See RCW 13.40.020(25).

Katches said his newsroom pondered whether “Heimlich paid for his crime and completed his sentence” and suggested that some “may argue that mistakes made by a minor should be forgiven, considering that studies show juvenile sex offenders rarely commit additional sex crimes after sentencing.” In Katches non-expert opinion “juvenile sex crimes should follow offenders into adulthood” unless “released from their obligation to register with authorities and they show a judge . . . that they no longer pose a threat to public safety,” again using inapplicable terms to a juvenile setting.

Even so, did Heimlich meet that standard? As a juvenile respondent did Heimlich pay his debt to society? According to Washington state law, yes. Under Washington’s Special Sex Offender Disposition Alternative (SSODA), pursuant to RCW 13.40.162, Heimlich had long since successfully completed treatment and followed all the terms of his probation and court supervision. SSODA is a very rigorous process, not merely the “two years of counseling and classes” that Moran and Schmidt cited. Justice had long been served in this case by the time of publication of Mr. Heimlich’s prior involvement with the Washington Juvenile Justice Act.

Kerry Eggers recent article in the Portland Tribune highlights the extreme complexities a 15 year old accused of an intra-familial sex offense must face. Juveniles accused of any criminal offenses in Washington are not afforded jury trials. The accused youth, facing substantial commitment of time to a Juvenile institution and civil registration requirements, must make very difficult decisions on how to proceed and are often influenced very heavily by family members with very different objectives.

Heimlich was successfully rehabilitated and reintegrated into society by virtue of his successful completion of a rigorous treatment and evaluation under SSODA and subsequent deportment. Since his discharge he has excelled academically, socially, and yes, athletically, without any hint of offending behavior including any sexual offense. Heimlich is a textbook example of Washington’s JJA performing exactly as the legislature intended.

Notwithstanding Heimlich’s procedural lapse in the spring of 2017, which allegedly tripped initial media interest in his case, the Caldwell study cited by Schmidt & Moran questions whether requiring juvenile offenders to register is truly beneficial to society. This is an important question considering the difficulties attendant upon carrying that obligation into adulthood when such issues impinge on prospects for employment, (i.e. pitching at the major league level), housing, or even post-secondary education as has now occurred in this case. These civil registration requirements are what Heimlich got entangled with, since there was uncertainty over whether he had to register in Oregon when he turned 21. As the DOE report mentioned above instructs, criminal justice inquiries “may result in a broad chilling effect or overbroad exclusion of students.” Indeed, the DOE’s specific best-practice guidance to college applicants reads: “If you have been adjudicated as a juvenile delinquent or have youthful offender status, you should respond to the felony question [on your college application] by checking ‘no.’” (U. S. Department of Education, “Beyond the Box,” Washington, DC, 2016, p. 23). Thus, if Heimlich was asked on his college entrance application whether or not he had ever been convicted of a crime, his answer “NO” would have been completely lawful and truthful.

The Heimlich case prompts another, more overarching, question: If juvenile offenses are to precipitate adult-level consequences for a lifetime, why have juvenile adjudication at all? This leads to the other exacerbating aspect of the journalists’ failure to read and comprehend the reports they cited, and their failure to understand Washington state law as applicable to juvenile offender proceedings, yet proceeded to publish anyway. The case came to their attention due to Heimlich’s civil obligation to register his address for a minimum of 60 months post-adjudication, this after he had already successfully completed all terms of his dispositional order and had been discharged from probation. The full thrust of the 2016 Caldwell Study is to make youths, or adults who as youths, committed sexual offenses exempt from public notification and residency registration laws. (Sex Offense Registration and Related Laws: Treating Youth Fairly, National Juvenile Justice Network, 2016.) This article cites research showing that these registration requirements imposed on youthful offenders who have successfully rehabilitated themselves and become reintegrated into society provide NO public safety benefits. In fact, these obligations usually expose the affected youth and their communities to greater harm. This report states that notwithstanding the low recidivism rate cited by the journalists, affected youth and their families are often targets of violence; ostracized; denied education, housing and jobs; and frequently suffer from depression, isolation, and suicidal ideation, a finding consistent with the US Department of Education study mentioned above. For Luke Heimlich to himself to remove himself from positive pro-social activity forcibly isolated himself from his teammates and the activities surrounding the College World Series was the worst possible outcome and contrary to reigning social science theory.

Perhaps the most egregious aspect of the original Moran/Schmidt story is that the authors gave little, if any, thought to what this new round of publicity surrounding a successfully adjudicated case would do to the child, a child whose mother states “doesn’t really remember everything that happened.”

By all accounts, Mr. Heimlich properly was held accountable by the Washington Juvenile Justice Act and did everything asked of him. By every measure he had successfully reintegrated himself into society. He has not been accused of committing any new offense, he has excelled academically, socially, and athletically. Steve Clark and the OSU administration failed Luke Heimlich by not offering a completely justifiable defense. For all the reasons stated in the US Department of Education Study and the Caldwell Report cited and ignored by the Oregonian’s reporters, compounded by their ignorance of how Washington State Law treats youthful offenders, Luke Heimlich should have played in the 2017 College World Series. He should have been drafted by a major league baseball team.

Only the future will tell what needless damage vigilante journalism and administrative incompetence have done to the Heimlich family.

Epilogue: NYT 8 May 2018: “All the News That’s Fit to Print” Was it?

Any writer taking on the subject of writing about Luke Heimlich other than just his baseball skills, ought to have at least a rudimentary understanding of Washington state law, specifically its Juvenile Justice Act (JJA) as it would relate to a juvenile charged with a sex offense, the 2016 US Department of Education report (“Beyond the Box”), and the Caldwell Study Sex Offense Registration and Related Laws: Treating Youth Fairly, National Juvenile Justice Network, 2016 before undertaking an attempt to write about, let alone formulate an opinion about, this complex case.

Curiously, the NYT article was completely devoid of any content of these extremely relevant subject areas. The article was simply a regurgitation of old news made worse by the fact there was no reference to the WA JJA, the DOE report or the Caldwell study. The most important news to print wasn’t printed at all.

Washington Law: First of all, Mr. Heimlich’s record is SEALED by Court Order. Once sealed, the effect is that the proceedings in the case shall be treated as if they never occurred. Thereafter, the subject (Mr. Heimlich) may reply accordingly about the events and records that are sealed. See RCW 13.50.260(6)(a).

Our state constitution guarantees jury trials in criminal prosecutions and this right to a trial by jury shall remain inviolate. We have a separate system for dealing with juveniles accused of committing offenses and they are not afforded jury trials. According to our Supreme Court, Washington has been avoiding accusing and convicting juveniles of crimes for more than 100 years.

Under the Juvenile code “An order of court adjudging a child a juvenile offender or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime.” RCW 13.04.240. Our Supreme Court has written: Thus, “An act which would be a crime if committed by an adult is not a crime, and thus not a felony, if committed by a juvenile.” We treat youth here in Washington differently than adults charged with the same offense. We use a completely different vernacular. Our Juvenile Justice Act operates under the philosophy to rehabilitate, correct and direct errant youth. It appears Mr. Heimlich did not require much redirection. We don’t rehabilitate youth to 95% and say “you may now resume your pursuit of life, liberty & happiness. Oh, except you can’t play professional baseball. Sorry.” If that were the case, what else couldn’t he do? Where would you draw the line in the sand?

The reason our Supreme Court denies juveniles the right to a jury trial lies in the distinction between the adult and juvenile systems. It is the rehabilitative purposes and lesser penalties of the JJA which stand in contrast to the punitive purposes and much more serious penalties of the adult criminal system. It is the nature of the penalty, not the criminal act committed that distinguishes the juvenile from the adult system. Our Supreme Court has written in justification of the denial of jury trials to juveniles as follows:

The purpose of the juvenile justice system is ostensibly to establish a system of having primary responsibility for, and responding to, the needs of offenders, as well as to hold juveniles responsible for their offenses. The critical distinction between the two systems lies in the Juvenile Justice Act of 1997’s (JJA) policy of responding to the needs of juvenile offenders. We have in the past found such a policy as rehabilitative in nature, whereas the criminal system is punitive. Such difference has led us to consistently conclude the right to jury trial does not extend to juveniles adjudicated in juvenile proceedings.

This highlights the complexities an accused juvenile faces. Especially in cases involving allegations of sexual abuse where the evidence is nothing more than “he said” “she said.” The principle function of a jury is to find facts, not determine punishment. Our Supreme courts answer to this is, if a juvenile wants a jury trial, then they can decline Juvenile court jurisdiction and be tried as an adult. The trouble with this is if convicted, one would face the consequences an adult would receive.

This further complicates the difficulties of a 15 year old accused of a sex offense faces. Although the standard of proof of beyond a reasonable doubt is the same in an adult criminal proceeding as in a juvenile offender proceeding, it is not the same standard of proof. Who would you want to decide your fate? A jury of one judicial officer wearing a black robe or a jury of 12 of your peers who must be unanimous in their decision?

So yes, youth do often plead guilty to things they didn’t do to avoid likely much worse consequences. And yes, false accusations exist. The Department of Education report references plea bargains and collateral consequences for anyone who would care to read the report.

Beyond the Box: Finally, this notion that Luke Heimlich is “controversial” needs to be put to rest. He is just one of thousands of youth across this country who have been involved with the justice system. I’ve already answered the question of whether or not he’s “paid his debt” above. However, I can’t ignore this quote from Judge Sterling Johnson, Jr. from the Eastern District of the United States District Court of New York speaking at a national summit on lowering barriers of access of adult ex convicts to housing, securing public benefits, employment, etc. “If you borrow money from a bank and you pay it off, your debt is forgiven. If you get convicted of a crime in the criminal justice system, be it federal or state, you pay for the rest of your life.” With understanding and a little compassion, it’s time to turn the tide.

The best advice I could glean from the DOE report regarding admissions counselors making decisions to admit a justice involved individual for enrollment in their institution was this quote from p.28 of the report: “Perhaps the most powerful tool an admissions counselor or officer can have is the ability to use his or her own human experience in assessing the person behind the paper. Institutions should seek to create an admissions process that respects human dignity and is fair and equitable by design.” Why shouldn’t this also be true for landlords considering an applicant for housing, or an applicant for employment, i.e. major league baseball?

This is the second article I have tendered for public consideration regarding the Heimlich case. Though I have been happy to provide my thinking as a kind of amicus curiae (friend of the court of public opinion) it is truly unfortunate that OSU, other than Coach Casey, has failed to offer such information or the full range of support that Mr. Heimlich deserves as a student athlete especially in light of their newly announced policy increasing their commitment to student success. There was so much more that was fit to print.

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Here we go again...