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October 9, 2013
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Douglas County rapist denied a new trial

A Myrtle Creek man who raped a 4-year-old girl in 2003 was denied a new trial Tuesday, even though he was required to wear a leg restraint in front of a jury, a practice since declared unconstitutional.

Kevin Mitchell Bumgarner, 53, was found guilty of kidnapping, rape, assault and other sex crimes in 2004. He was sentenced to 61 years in prison by Douglas County Circuit Court Judge Ronald Poole.

A series of court rulings since his conviction led to the prison sentence being cut in half in August to 30 years.

Bumgarner is a prisoner at the Snake River Correctional Institution near Ontario and appeared in court Tuesday via speakerphone.

Defense attorney Jay Frank argued that leg restraints Bumgarner wore during his trial violated his constitutional rights.

The motion was based on Oregon vs. Sherie Wall, a 2012 ruling that stemmed from a Douglas County case. Wall pleaded guilty to drunken driving after being ordered to wear leg restraints during her pending trial. The Oregon Court of Appeals overturned the conviction, ruling it was unconstitutional to restrain a defendant in front of a jury unless a judge declared that the defendant might try to escape.

In the unanimous decision, the three-judge panel ruled that Wall’s leg restraints, though hidden by clothing, would have compromised a fair trial. Restraints “impinge on the presumption of innocence and the dignity of the judicial proceedings” and may inhibit a defendant’s consultation with his attorney, according to the ruling.

Douglas County Jail Commander Lt. Mike Root testified Tuesday that defendants accused of serious crimes were once routinely restrained during their trials. Defendants wore either a leg brace or stun belt, he said.

Bumgarner wore a leg brace, which allows a person to walk but locks in place if the defendant runs, Root said.

District Attorney Rick Wesenberg said the defense should have objected to the leg restraints during the trial and that it was too late to bring up the issue.

The victim’s father testified Tuesday that Bumgarner did not seem hindered by the leg brace. He seemed jovial at times during the trial and exchanged smiles and notes with his attorney, the father said.

“I was unaware of any device on him at the time,” he said.

The News-Review is withholding the man’s name to protect the identity of his daughter.

Poole said too much time has passed to grant a new trial based on Frank’s argument.

“I cannot believe that you can litigate this issue nine years later,” he said. “I had no idea Mr. Bumgarner was under restraint. I fail to see how we can get a new trial” when the issue was not raised at the time.

Frank said after the hearing he had no firm plans to appeal, but that Bumgarner adamantly maintains his innocence and plans to continue appealing until he is out of options.

“What he tells me is that he is innocent and that he will continue to fight until he can’t fight anymore,” Frank said.

On his way out of the courtroom, the victim’s father spoke angrily toward Bumgarner’s parents. Bumgarner’s father heatedly responded, and the victim’s father was escorted out of the courtroom by Root.

The two parties walked out of the courthouse separately.

Bumgarner’s sentence was cut in half based on a U.S. Supreme Court ruling that found multiple counts from the same crime can be merged into a single conviction. In 2012, the Oregon Court of Appeals ruled Bumgarner’s trial lawyer should have sought a shorter term.

• You can reach reporter Betsy Swanback at 541-957-4208 or bswanback@nrtoday.com.

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The News-Review Updated Oct 9, 2013 12:45PM Published Oct 22, 2013 05:48PM Copyright 2013 The News-Review. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.