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Should Thiry be tried for Burns' death?

The death of a firefighter who suffered severe smoke inhalation while battling the Oak Knoll fire has raised the question of whether the mentally ill homeless man who started the fire should be prosecuted for his death.

Medford Fire-Rescue Battalion Chief Mark Burns' lungs were nearly destroyed by the choking, toxic black smoke from the August 2010 fire. After years of suffering, he died on March 6.

The Oregon Fire Policy Committee determined his death was caused by injuries he suffered in the line of duty while fighting the fire, which destroyed 11 houses in Ashland.

John David Thiry, a mentally ill homeless man who lives in Ashland, allegedly flicked a cigarette into a field of dry, overgrown weeds and grass, triggering the fast-moving fire that jumped Interstate 5 and devoured the homes before firefighters from throughout the Rogue Valley stopped its advance. Thiry has a long history of dangerous conduct.

The day after the fire, Thiry was charged with 10 counts of recklessly endangering another person and 14 counts of reckless burning for the danger he created for neighbors and the damage he caused to their property.

In December 2010, a judge found Thiry not guilty of all the charges, saying Thiry was not aware of the danger of his actions because of mental illness.

Jackson County District Attorney Beth Heckert said no one has submitted information about Burns' death and its connection to the Oak Knoll fire to her office, so she hasn't looked into the issue.

Heckert said there would be hurdles to successfully prosecuting Thiry for Burns' death.

"One of the difficulties would be proving beyond a reasonable doubt the fire is the cause. We may not be able to prove that beyond a reasonable doubt," Heckert said. "It's always difficult when a person succumbs after a long period of illness."

A bigger hurdle could be that Thiry already was prosecuted and found not guilty of reckless endangerment and reckless burning charges, she said.

During that case, Jackson County Circuit Judge Lorenzo Mejia said the state did not prove Thiry was consciously aware of the damage to come.

Mejia said Thiry appeared to have committed criminally negligent acts. But under Oregon law, a person must be consciously aware and consciously disregard the substantial risks of their actions to be found guilty of recklessness.

Mejia said the most persuasive evidence of Thiry's lack of awareness came from the testimony of police officers. When questioned the night of the fire, Thiry flicked a cigarette within inches of more dry grass in front of police.

Andrew Vandergaw, Thiry's court-appointed defense attorney at the time, said he does not think Thiry should be prosecuted for Burns' death, and doesn't believe the District Attorney's Office could win such a case.

"They would have to prove my client started the fire and he knew at the time the danger of that," Vandergaw said. "That's exactly what the judge already ruled on. My client was not aware of the danger."

Potential charges not likely to stick

As for charges that could potentially be brought against Thiry, murder must be committed intentionally under Oregon law. A person also can be found guilty of murder if the person commits first-degree arson and someone dies.

Under one element of first-degree arson, the person must intentionally damage property by starting a fire or causing an explosion.

There was no evidence in the Oak Knoll fire case that Thiry intentionally started the fire or knew it would cause damage.

With a charge of manslaughter, prosecutors typically must prove a defendant caused someone's death by reckless actions. Thiry could be found not guilty of Burns' death because he was not aware of the recklessness and danger of his actions.

A charge of criminally negligent homicide could perhaps be the one most likely to succeed if Thiry were prosecuted.

Criminally negligent conduct is marked by a gross deviation from what a reasonably prudent person would do, or failing to perceive a risk to human safety. The person did not know the risk of death to the victim, but should have, and the negligent conduct led to the victim's death.

A defense attorney for Thiry could mount a standard defense, or an insanity defense.

If found guilty except for insanity, Thiry could be sentenced to an Oregon State Hospital psychiatric facility.

For many who have been concerned about Thiry and the danger he poses to the community, having him confined in a secure setting where he could receive mental health care long has been a goal.

A dangerous history

Vandergaw, Thiry's past defense attorney, said his client did not receive mental health care during the months he spent in the Jackson County Jail awaiting trial in the Oak Knoll fire case.

Thiry also was not sent away for a psychiatric review at the Oregon State Hospital to see whether he was mentally competent to aid in his own defense. Defendants who are found to be mentally ill can receive mental health treatment and stabilization services there. If their mental state improves enough, they are sent back to jail to eventually reach a plea agreement or go to trial.

Some defendants have shown remarkable improvement after receiving Oregon State Hospital mental health care.

Heather Marie Everman likely was suffering paranoid delusions and auditory hallucinations when she randomly stabbed a man in the back in Medford's Pear Blossom Park in October 2014. The victim survived the attack.

In her jail booking photo, she was dirty, disheveled and had a bandage on her face and tissue stuffed up one nostril. She was combative in jail, refused to eat and spent much of her time staring blankly.

Everman was taken to the state hospital for treatment, then returned to jail after her mental state improved. A judge found her guilty of second-degree assault except for insanity and sentenced her to up to 10 years in a state psychiatric facility.

During the sentencing, Everman wore her hair neatly in a bun and was able to politely answer questions. Both the judge and her defense attorney called the situation tragic.

Defense attorney John Hamilton said Everman was like a different person after she received treatment, compared to when she was in the throes of her delusional state.

"This is a tragedy of our current mental health system," Hamilton said during Everman's sentencing hearing, noting it took the stabbing and Everman's entry into the criminal justice system for her to get the mental health treatment she needed.

He said the stabbing likely never would have happened if Everman had received medication and treatment earlier.

Heckert said prosecutors cannot require that defendants be sent to the Oregon State Hospital for psychiatric treatment and stabilization.

"Typically, a defense attorney would say they can't aid and assist in their defense," she said. "They ask to send defendants to the state hospital to see if they can be stabilized. The prosecution can't assert that for the defendant. If the defense attorney says the client can aid and assist, then the case goes forward."

Heckert said it's also up to a defense attorney and defendant to claim an insanity defense.

"If they choose not to assert a mental defense, nobody can do that for them," she said. "The judge and the DA can't do it."

If a defendant is found guilty except for insanity, the person can be sentenced to the custody of the state Psychiatric Security Review Board and kept at the state hospital or a lower level of care, such as a secure residential treatment facility.

Vandergaw said he cannot discuss why he and Thiry did not present an insanity defense because of attorney-client privilege.

After Thiry was acquitted of charges in the Oak Knoll fire and released from jail the same day, he said he was going to drink beer and return to Ashland.

Those familiar with Thiry say he appears to suffer from a severe mental illness such as schizophrenia, and his symptoms are aggravated by his chronic alcohol and drug use.

In January 2011, Thiry was in trouble again when he threw a traffic pin off an Ashland overpass onto I-5. He was convicted of first-degree throwing an object off an overpass. Charges of recklessly endangering another person and second-degree disorderly conduct were dismissed.

Thiry was given credit for the time he served in jail awaiting the outcome of the case and released in March 2011.

In May 2011, Thiry threw rocks at two girls walking on an Ashland bike path — hitting at least one in the head and back — and threatened to kill them. He was found guilty of menacing, harassment and disorderly conduct in July 2011, but released two weeks into an eight-month sentence because of jail overcrowding.

By then law enforcement officers were desperate to find a way to get Thiry off the streets and into a secure setting.

Tighe O'Meara, who has since been promoted to chief of the Ashland Police Department, and a probation officer petitioned to have Thiry committed to a mental institution. Under civil commitment, a judge could require Thiry to accept mental health treatment.

"There was evidence he was an ongoing danger to himself and others," O'Meara said. "The overpass incident could have had devastating consequences to traffic on the freeway and could have been fatal. There was increasing evidence he presented a danger. We wanted to get him into the state hospital."

O'Meara said he was also alarmed by Thiry's behavior toward the girls on the bike path.

But the civil commitment petition failed.

"A judge said the threshold had not been met," O'Meara recalled.

To be committed in Oregon, a person must be dangerous to himself or herself or others, or be unable to provide for basic personal needs such as health and safety.

Generally, a person must have recently threatened or attempted suicide or serious bodily injury, or have demonstrated a danger of substantial and imminent harm to others through a recent act, attempt or threat.

Heckert said the standards for civil commitment are high.

Even if people are so mentally ill they are homeless, they will not be judged a danger to themselves or unable to meet basic needs if they are able to get food and survive day to day, she said.

"You have to be so delusional, for example, that you're not wearing clothes in freezing weather," Heckert said.

O'Meara said Thiry continues to exhibit agitated, threatening behavior and is contacted almost daily by Ashland police. He is regularly cited or arrested for having an open container of alcohol in public, using marijuana in public, trespassing and other behavior.

On June 29, Thiry was walking through the Oregon Shakespeare Festival campus in Ashland when an African-American staff member heard him say, "I'm going to f---ing kill you," O'Meara said.

The words alarmed the woman, who feared they might have been racially motivated. The incident came on the heels of a separate incident in which a different transient with mental health problems and a history of racist language told an African-American OSF actor the Ku Klux Klan was alive in Ashland and Oregon law allowed him to kill her.

O'Meara said he thinks Thiry may have been speaking to himself while walking through the OSF campus.

"Walking around yelling is his 'therapy,' as he calls it," O'Meara said.

Ashland police recently made an agreement to have a Jackson County mental health worker use office space at Asante Ashland Community Hospital. Police can bring people suffering from mental health issues to the mental health worker for services.

O'Meara said he doesn't know whether that cooperative effort will help in Thiry's case. He said Thiry is resistant to getting mental health care.

Burns' family doesn't seek prosecution

Mark Burns' adult son, Trevis Burns, said his family is not advocating for the criminal prosecution of Thiry.

Trevis Burns said his father knew Thiry started the Oak Knoll fire that destroyed his health, but he harbored no ill will toward Thiry.

"Dad knew and he was never mad at that guy. Regardless of how the fire started, he would have gone to fight that fire," Trevis Burns said. "The guy is mentally ill and homeless. Prosecuting him wouldn't change anything that has happened. My dad wouldn't have wanted it. I don't think he (Thiry) started that fire intentionally. No one knew it would blow into that subdivision."

Mark Burns' best friend, former Jackson County Fire District 3 Operations Chief Barry Hoffman, also said he doesn't support the criminal prosecution of Thiry.

"I don't think that's what Mark would want. He wasn't that type," Hoffman said.

Trevis Burns said he does believe Thiry needs to be committed so he no longer poses a danger to the community and can receive mental health treatment.

"He needs to be taken off the streets and put in an institution," Hoffman said. "What do you do with a guy like that if he really doesn't know?"

Staff reporter Vickie Aldous can be reached at 541-776-4486 or valdous@mailtribune.com. Follow her at www.twitter.com/VickieAldous.

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