“Mr. Wirkkala, you are free to go.” With those words, Circuit Court Judge Randy Miller closed the book on an eight-year nightmare for Oregon native Luke Wirkkala.
“I breathed free air for the first time in eight years,” Wirkkala proclaimed.
Wirkkala’s case is an example of what happens when elected officials prosecute cases that, in good conscience, they should know are non-meritorious. While repelling a sexual attack and defending his family, Wirkkala drew a sentence of 25 years to life for second-degree murder. He appealed, weathered a retrial and prevailed against the overwhelming power of the state of Oregon. His is a chilling tale for anyone who owns or carries a firearm and is prepared to use it in self-defense.
His World Shattered
Luke Wirkkala grew up in Washington state but moved to Bend, Oregon, in 2012. There with his girlfriend and her young son, they set about establishing a life. An avid photographer and writer, Luke sold magazine articles to augment his income from a series of jobs that ranged from logger and heavy equipment operator to part-time bartender. Still fresh from the move, he explored the area around Bend, enjoyed the outdoor recreation opportunities of the Northwest and spent time with his family.
“It was the happiest time of my life,” he recalls. But that was all about to change. David Ryder, by all accounts, was a twisted, violent person with predatory tendencies. Investigators for both the police and Wirkkala uncovered numerous witnesses who corroborated this portrait of violence.
“He poisoned one guy with rubbing alcohol,” Wirkkala stated. “In addition, his hobby was trying to have non-consensual sex with straight men.”
Wirkkala didn’t know Ryder’s history when, after plans for a Super Bowl party at a local tavern failed to materialize, he invited Ryder to his home to watch the game and drink a few beers. Wirkkala would be the first to admit that, in hindsight, that was a mistake. His girlfriend, her son and her nephew (who was sleeping over) retired at around 10 p.m. while the Super Bowl wound down. Wirkkala and Ryder continued to drink, consuming a case of PBR. They swapped stories and joked. There was no inkling of what was to come.
“At some point, I passed out,” Wirkkala recalled. The next thing he knew, Ryder was assaulting him, trying to remove his clothing and attempting to force Wirkkala to submit to sex. During the struggle, Ryder left numerous bruises and marks on Wirkkala, who finally broke free, dashed into his bedroom and retrieved a 12-gauge shotgun.
He stood at the exit from his bedroom, blocking the hall to where his girlfriend slept and the two boys dreamed peacefully. He would later say he felt a duty to protect them from the man he had invited into his home.
“Get out,” Wirkkala demanded. Ryder responded with what Wirkkala would describe as a “twisted smirk.” Ryder advanced on him. Wirkkala racked the shotgun. Then he told Ryder, “I will kill you.” Instead of behaving rationally, putting up both hands and leaving, Ryder charged him, apparently with the aim of wrestling the shotgun away from Wirkkala.
Wirkkala pulled the trigger, and a 12-gauge slug tore into Ryder’s neck, killing him.
“[E]verything happened in less than a minute,” Wirkkala recalled. “I was forced to defend myself and the three people behind me in a moment of crisis. It wasn’t planned; it was just a reaction. I stood there with the shotgun. He charged at me. I had no choice.”
While Wirkkala’s girlfriend called 911, he tried to understand what had just happened. One minute he had been peacefully sleeping and the next he had been awakened by a violent sexual assault. While the first assault was over, the second assault — by the criminal justice system — was only beginning.
Police arrived after Wirkkala’s girlfriend — the couple would marry in August of 2014 — called 911. They took the shotgun. Then they “invited” Wirkkala to the police station. The police would not allow him back into the house to get shoes or a coat, so in freezing temperatures in February, he went to the police station in pajamas and bare feet. They put him in an interrogation room. It was 3 a.m. He was still under the influence of alcohol, he’d suffered an adrenaline dump, and he was still trying to make sense of what had happened.
“At first, the cops who were with me just made small talk,” Wirkkala said. “They didn’t want to discuss the events that had taken place. They kept telling me the detective would be here shortly,” he stated.
The police would not allow him back into the house to get shoes or a coat, so in freezing temperatures in February, he went to the police station in pajamas and bare feet.
The reason might have been that the police didn’t want to ask questions when Wirkkala could have pointed out his recollection was impaired by alcohol. Instead, they waited an hour and a half for him to sober up, explaining that they were just waiting for the detective to arrive.
When Detective Timothy Knea finally did show up, the friendly act from the patrol officers vanished.
“He took a pretty combative approach,” Wirkkala recalled. “We butted heads almost immediately. He started asking me questions that he obviously already knew the answers to. And while they told my [girlfriend] several times that she didn’t need to answer any questions, they never told me that until they read me my rights.”
Once they read Wirkkala his rights and began asking questions they already knew the answers to, he describes that as making him uncomfortable. “My hackles went up,” Wirkkala said. “I asked for an attorney.” That one act would later unlock his cell door and result in a new trial. The Oregon Court of Appeals described the incident this way:
Knea then began asking what he described to defendant as “preliminary” questions, which defendant answered. After approximately five minutes, the following exchange occurred:
DEFENDANT: We moved here in May.
DETECTIVE KNEA: That was going to be my next question. OK. Who else is — so there’s another male that was at the house. What’s his name?
DEFENDANT: (Pause.) What was his name?
DETECTIVE KNEA: Yeah.
OFFICER HATOOR: What was his name?
DEFENDANT: I appreciate the hospitality here, fellas, but I think I’m going to get a lawyer.
DETECTIVE KNEA: OK. Well, that’s obviously something that you have a right to, like I said, OK?
DEFENDANT: His name was [victim].
DETECTIVE KNEA: And — and I — I understand that there’s probably a little bit of trepidation about talking to me, OK? However, I don’t know what happened, dude, at all.1
In spite of his clear invocation of his right to a lawyer, the detective pursued the interrogation, asking more questions and getting answers that demonstrated a bit of hostility on Wirkkala’s part. While people often think, unrealistically, that they will be just fine after a self-defense shooting, the dump of stress chemicals and other factors (such as alcohol consumption) make that unlikely. The only safe thing to do is ask for an attorney and say no more.
Before the trial, Wirkkala’s attorneys moved to suppress the portion of the video and transcript after his request for a lawyer, arguing that Wirkkala unequivocally invoked the right to have counsel present during the police interrogation and that he did not subsequently waive that right. The trial court suppressed the evidence of Wirkkala asking for an attorney but otherwise denied his lawyers’ motion to suppress the video. The state would later argue the answers were not important; it was the hostility that Wirkkala displayed that it wanted the jury to see.
As is frequently the case when the state decides to pursue someone, most of the issues in the trial fell in favor of the state. At the outset, Wirkkala’s lawyers sought bail, in part so they could work directly with him in developing his defense. His bail was denied. Wirkkala stayed in the county jail for the entire course of his trial. He described the jail’s conditions as inhumane.
The state presented its case to the jury. It painted David Ryder as an innocent victim of foul play. It also claimed the assault never happened and any sexual contact was consensual.2 Prosecutors showed the video tape of the interview with the police to demonstrate that Wirkkala was “hostile.” The jury brought back a conviction. The judge sentenced Wirkkala to 25 years to life in prison, sending an innocent man to an inconceivable fate.
Wirkkala’s lawyers argued to the Oregon Court of Appeals that the detective continuing to question him after he invoked his right to a lawyer violated his constitutional right to counsel and to be free from questioning without counsel. The state would argue on appeal that, by answering the detective’s question after asking for a lawyer, Wirkkala waived his request for an attorney. The state tried to argue that, by answering the question about the name of the victim, Wirkkala demonstrated his desire to continue without an attorney. Apparently, this argument had convinced the trial judge. The Court of Appeals explained what happened next at trial:
In refuting defendant’s theory of self-defense, the state played the interrogation video during Knea’s direct examination, and replayed the final minutes of the video, in which defendant became hostile toward Knea, during closing argument. At closing, the state highlighted the difference between defendant’s demeanor in the interrogation video and his more “appropriate” and “articulate” demeanor at trial:
Now, the defendant, as he appeared in court — and you can take a moment to look at him. Well-dressed. He’s been appropriate through trial, articulate on the stand, knows the case well, described — you know, self-described anxiety in social situations. A storyteller, a writer, someone who composes, works things through. But you are not looking just at the defendant as he appears before you today.
At closing, the state highlighted the difference between defendant’s demeanor in the interrogation video and his more “appropriate” and “articulate” demeanor at trial.
We are talking about the defendant on [the date of the shooting]. His conduct on that day, how he behaved, how he acted. And that’s really difficult because for the last eight days, that’s the [defendant] you’ve seen; the [defendant] in court. The [defendant] who has an incentive and a motive to present a certain way.
When you’re examining his statements, when you’re examining his testimony and when you evaluate that testimony, you have to take that into consideration.
[Interrogation video played.]
It’s important to remember that is the [defendant] that [the victim] was with on [the date of the shooting]; a person who can make choices about his behavior, how he acted with who he liked and who he didn’t like; a person who said he couldn’t remember, but clearly does.
Defendant was convicted of murder.3
Perhaps realizing that Wirkkala’s right to be free from questioning without counsel had been violated and that the video should have been excluded, the state argued that this was a case of harmless error. “Harmless error” generally means there is enough evidence of guilt other than the item suppressed that admission of that one item was harmless because the conviction can be sustained on the other evidence. The Court of Appeals didn’t buy it.
It overturned the conviction, but by that point Luke Wirkkala had served five years of a life sentence for murder. Wirkkala’s hope was that the state would dismiss the indictment and let him live his life a free man. That was not to be the case. Wirkkala was transferred from the Oregon State Prison back to Deschutes County, Oregon, to await his retrial.
When a guilty man is sent to prison, he’s sure to make new friends among the guilty. When an innocent man is sent to prison, he loses friends outside the prison walls. Few want to be known as the friend of a murderer. Those relationships that are closest to the prisoner are placed under an immense strain — emotionally and financially. A family that counted on two incomes now has one.
While the retrial granted on appeal was welcome news, it came too late to save Wirkkala’s marriage. The incarceration and delay cost him the most important relationship of all. His wife of five years filed for divorce, and the action was finalized in March of 2020. “It broke my heart,” he said. But he couldn’t blame his ex-wife for filing for a divorce. Wirkkala understood the stress on her had been terrible. Fortunately, his family never gave up on him. They rallied behind him, intent to make sure that the media covered both sides of the story during the second trial.
The Games Prosecutors Play
After five years locked up, Wirkkala would get a second chance to clear his name, but not before the state — aware that it had overcharged him — dangled plea deals in front of him, designed to ensure he kept a criminal record. While the plea offers were made, the institutional pressure remained. Although his lawyers requested bail, they were again denied. Wirkkala was to remain in jail, and the game-playing got even worse.
Numerous commentators have complained that prosecutors frequently overcharge cases in order to force plea bargains. While such bargains are great deals for people who are actually guilty by allowing them to reduce the time they will have to serve in order for the state to buy a speedy disposition and avoid trial, they tend to be a fool’s bargain for the innocent. The state offered a plea deal for 20 years if Wirkkala would plead guilty to manslaughter. As the time of trial drew closer, that offer became 15 years, then 10 years, then — in the weeks prior to trial — nine and a half years. Wirkkala turned all of these offers down.
“I wasn’t guilty. It was self-defense,” he declared defiantly. He wasn’t going to budge.
“My attorneys were advising me on risk. They thought the last offer was a good offer because, at that point, I had been in jail for eight years and would only have to serve a year and a half more. The presiding judge called my lawyers and told them he would grant me conditional release (release without bail) for a month to put my affairs in order if I would just sign the plea agreement,” Wirkkala said. “I refused.”
Although advising him to mitigate his risk, his lawyers always felt they could successfully defend him on retrial. Even some of his family members, who had been very supportive, advised him to take the last deal. “But not my sister,” Wirkkala stated. “She was in full support the whole way!”
The road back to a trial was a long one. Originally the case had been prosecuted by the local district attorney’s office. Owing to what Wirkkala described as a series of breaches of their ethical duties, he filed a bar complaint against the prosecutor and his office. They would recuse before trial.
The Oregon Department of Justice sent several prosecutors to Deschutes County to investigate, and one of those prosecutors would later tell his attorneys that they understood that Wirkkala had been the victim of an assault. However, when the local district attorney had to recuse due to the bar complaint, the state sent two prosecutors — including the same one who came to investigate the allegations of ethical misconduct — to take over the case. They prosecuted with greater vigor than the original prosecutors. After admitting to Wirkkala’s attorneys that she believed an assault had occurred and that Wirkkala was the victim, that prosecutor took a different position at trial and said no assault had occurred. As a part of the state’s argument, the prosecutors denied Ryder’s attack was sexual, claiming that it was consensual sex.
As a part of the state’s argument, the prosecutors denied Ryder’s attack was sexual, claiming that it was consensual sex.
Although ready to try his case in early 2020, the trial was postponed, and Wirkkala sat in jail in Deschutes County for a full year because of the COVID-19 lockdowns. Again, bail was denied every time his attorneys requested it. The theory is that the longer someone who doesn’t belong in jail stays there, the better the chance is he or she will take a plea deal to ensure his or her release.
At retrial, as they had before in the first trial, Wirkkala’s lawyers tried to get in information about Ryder’s behavior. In the first trial, this evidence was suppressed; none of it was allowed in as evidence. Prosecutors portrayed Ryder as an innocent victim even though they knew, based on their own investigation, that he had been a sexually violent predator. In a nod to fairness, Judge Miller allowed the defense to present one witness, who testified that Ryder was violent when drinking, but the judge would not let him describe specific incidents of conduct.
In one of those incidents, Ryder fed a fellow sailor rubbing alcohol and was subsequently discharged from the Navy. He had a habit of sending anatomical photos to people who didn’t want to see them. The judge kept all of that out of the courtroom, even though sexual assault was the specific crime that the defense alleged Wirkkala was repelling with lethal force. On cross-examination by the state, that witness further damaged the state’s case by stating that Ryder was not someone you wanted to be around when he was drinking.
The trial began in March 2021 and lasted three weeks. Wirkkala took the stand in his own defense and withstood cross-examination by the state. He went through the events of the shooting, telling the prosecutor, “I told him I’d kill him.” The prosecutor claimed the story was unbelievable. Apparently, it wasn’t.
The closing remarks are what upset Wirkkala the most. The state continued to describe Ryder as “the victim.”
“Kristen Hoffmeyer, the DOJ prosecutor, said that I had to scour the earth to find one guy who would say something bad about him [Ryder],” Wirkkala explained. “She knew that we had multiple witnesses lined up to testify about how bad this guy was.” Wirkkala is considering a second bar complaint against the prosecutors.4
Many of the errors made at the first trial were repeated at the second trial. But in the intervening time, Luke Wirkkala’s close-knit family had stepped up. They set up a Facebook page and a website (FreeLukeWirkkala.com). They conducted protests at the courthouse. They took their story to everyone who would listen. The real victim in this who was prosecuted for fighting off a sexual assault that would have been a felony had Ryder been successful in his efforts.
Justice was finally delivered on April 5, 2021, when the jury came back with a “not guilty” verdict. But it was only a quirk of Oregon law that permitted Wirkkala to walk free. In most states, a unanimous verdict is required in criminal trials, whether that be for conviction or acquittal. Under Oregon law, it takes a unanimous verdict to convict, but an acquittal can be rendered with only 10 votes. Here, two jurors held out for a guilty verdict, but 10 voted to acquit. As a result, Wirkkala was saved from a retrial.
For the last five months, Luke Wirkkala has been trying to put his life back together. He’s been trying to adjust to being able to go anywhere and do anything he pleases without guards monitoring him. He has been enjoying home-cooked meals and the occasional restaurant meal that was unavailable while incarcerated.
“I’m feeling a little better as each day passes. I started writing a book when I was in jail, and I am going to finish it,” he said. “I am planning on filing lawsuits for malicious prosecution.”
For the most part, however, Wirkkala is trying to pull out the positive from the experience and, in many ways, trying to just make sense of it all.
“I’ve come to the position where, being a writer and a good person, a law-abiding citizen, I am well-placed to observe and report on how bad the system of justice is in this country, and I am a good person to tell others about that,” he said.
Wirkkala’s hair-raising story of justice denied for eight years contains more than a few lessons for responsibly armed Americans. Perhaps the most important is that your vote matters, and who you elect to enforce the law as your prosecutor means a great deal. The prosecutor has an ethical duty to do justice, not to get a conviction. In this case, the prosecutors abused the prosecutorial discretion they were afforded. If you haven’t talked to your local district attorney about his or her position on self-defense, there couldn’t be a better time than right now. He or she is a public servant and should answer legitimate questions on that subject.
Another important lesson is that alcohol and firearms often produce these kinds of awful events. Inhibitions are lowered by alcohol, and tempers frequently flare under its influence. Perhaps Ryder would have had better judgment were his brain not impaired with alcohol. Or maybe Wirkkala would have simply gone to bed and shown Ryder the door had he not been drinking. Alcohol consumption in the presence of strangers whose attitudes and demeanor you do not know should be limited, and you should never carry a weapon when you have been drinking alcohol.
Finally, the importance of summoning an attorney immediately — before saying anything beyond, “He attacked me and I feared for my life” — is vital to ensuring that the state cannot play games with your case and that the facts that are gathered are gathered fairly. In Wirkkala’s instance, the state continued to use evidence it gained unlawfully through continued interrogation, sought and was allowed to suppress relevant evidence of Ryder’s conduct, and mischaracterized material facts.
Had a lawyer been present from the beginning, much of that would perhaps have been prevented.
(1) “State v. Wirkkala,” Casetext Inc., Feb. 14, 2018, https://CaseText.com/case/state-v-wirkkala-2.
(2) Incredibly, the state claimed that an engaged man would have had sex with another man while his girlfriend and two young children slept in the same house. It is hard to imagine worse character assassination.
(3) “State v. Wirkkala,” Casetext Inc.
(4) ABA Model Rule 8.4 states that it is “professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Arguably, the “scour the earth comment” is a misstatement of fact.