Oregon man is shot, blames local judge

Gary Cohen of Salem, Oregon, was beaten and shot after he interrupted a burglar in his home Dec. 10.

He said the incident wouldn't have happened if state District Judge Daniel Boucher had not been lenient with the shooter, Uriel Osornio Jr., when Osornio went through his court.

Boucher said in a phone interview that the sentence Osornio received was standard for a drug offense conviction, and "pursuant to a plea agreement with the state," adding there was no way for anyone to know Osornio was going to shoot somebody. He didn't remember if he knew Osornio had a previous violent conviction, referring to the original charging document that says Osornio had been arrested for violent crimes before.

In December 2013, Osornio was on his way from Portland, Oregon, to Williston, North Dakota, by way of Amtrak. He was arrested at the Havre station after 11 grams of heroin, 29 grams of methamphetamine and a scale were found on him. Documents say Osornio already had a drug-related conviction in his home state of Oregon, and the Tri-Agency Safe Trails Task Force had been watching him by the time he arrived in Havre.

Osornio was convicted March 2014 of two counts of criminal possession with intent to distribute and criminal possession of drug paraphernalia. Boucher gave Osornio a five-year suspended sentence. By the next month, Osornio had transferred his supervision to Oregon.

On Dec. 10, 2015, 65-year-old Cohen, a retired 24-year Air Force veteran, came home and said he noticed "something was off" right away. The desk in the living room was a mess - "things had been thrown around." Cohen said he was expecting his son, who he described as "a hurricane," to visit the next day, and guessed he arrived early. Cohen also remembered seeing a backpack he didn't recognize in the house but didn't think much about it at the time. He continued to his bedroom and that's when he encountered Osornio.

"He had a gun - I think he pulled it out of his pocket - and hit me in the face, which kind of knocked me down. ... I was down on the floor, kind of wrapped around the toilet, feet out in the hallway. He's kicking me and hitting me, telling me not to look at him," Cohen said during a phone interview.

He said he continued to sit draped on the toilet as Osornio, just feet away, took jewelry from his wife's jewelry box and put it in a suitcase, also Cohen's.

"At this point, I'm just trying to survive this thing," he said.

Cohen said Osornio would occasionally threaten to shoot him; other times he yelled at him not to move and not to look at him; and "periodically," Cohen said, "he stops and comes and kicks me for a while."

"This guy is total scum. He got great joy out of it, you could tell," he said.

Cohen said his greatest concern became that his wife, whom he expected back from the grocery store any time, would arrive. He said Osornio was in no hurry to leave and that "he kept taking breaks and kicking me and beating me and pistol whipping me."

Osornio finally finished packing, pointed a gun at him and demanded the keys to his pickup truck and his cellphone. Cohen said he was forced to follow Osornio out to the garage. Osornio put the suitcase and a shotgun he found in Cohen's house in the bed of the truck.

The last thing Cohen remembered Osornio saying was, "I'm going to take your truck, I'm going to wreck it and I'm going to come back and kill you."

Cohen said his anxiety about his wife coming home grew with every passing second. He said Osornio seemed to be "tweaking" on drugs and Cohen was afraid of what would happen when she entered the situation.

Cohen's concern prompted him to take advantage of what he saw as an opportunity.

While loading Cohen's things into his pickup from the driver's side, Osornio left the passenger door open. Cohen remembered a .357-caliber revolver pistol he kept in the console. He said he quickly grabbed the pistol and began firing at Osornio.

Osornio fired back and hit Cohen once in the left side of his chest and somehow managed to open the garage door and flee during the shootout.

Cohen said he didn't shoot his attacker at all and is still unhappy about it.

"If I would've taken my time and aimed when I did shoot at him, I would've saved the taxpayers a lot of money. He wouldn't have been doing it again - he did more crimes after he left my house," he said. "Not killing Osornio will be the greatest regret in my life."

Marion County District Attorney Katie Suver verified, in a phone interview, that Osornio broke into another home after Cohen's, before he was caught. The Salem newspaper, the Statesman Journal, reported that Salem SWAT teams and drones were dispersed to help officers find Osornio because he was an active shooter.

Suver prosecuted the case in which Osornio pleaded guilty in a plea agreement to attempted aggravated murder, second-degree assault, unauthorized use of a vehicle, unlawful possession of a firearm by a felon and five counts of first-degree burglary. Osornio was charged with four other burglaries in addition to Cohen's, which is how he got five total counts. He received a 22-year prison sentence to the Oregon Department of Corrections in May.

Cohen said he thinks about the burglary every day. It's not because he has been physically affected by the injuries - he said Osornio's shot went through the left side of his chest without causing any major damage. And although he occasionally suffers some aches and pains from the beating, that's really not what bothers him most.

Cohen is angry that he overlooked the signs of disturbance in his home before being hit by Osornio, and he's angry he didn't kill Osornio. And although he never mentioned taking any legal action, he is not too happy with Boucher.

"This deal in Montana, I will never understand. Guy goes to court, gets sentenced to five years and the judge tells him, 'Go home and see your mother,'" he said.

With the Osornio files in front of her, Hill County Attorney Gina Dahl talked May 31 about the case.

Dahl confirmed what Boucher said: Her office did recommend a five-year suspended sentence in accordance with a plea deal she had reached with Osornio's public defender. But she pointed out that plea deals are struck before all the investigative research is in.

The way it works procedurally, she said, is her office negotiates a plea agreement based on the available information.

In this case, Dahl said she had information that Osornio had a 2012 conviction for cocaine possession, but no information that he had been convicted as an adult, although a juvenile at the time, for rioting. The original charging document says Osornio had "several arrests for violent crimes and marijuana distribution," Dahl said, but she cannot treat arrests as convictions until she has all the information. That information came later.

The plea deal was signed, Dahl continued, and Osornio pleaded guilty to two counts of criminal possession with intent to distribute and one count of criminal possession of paraphernalia.

After the plea deal is struck and the defendant has pleaded guilty, Dahl said, the judge then orders a pre-sentence investigation "and that's when the probation officer goes digging and investigates and gets all this additional information." Probation and Parole's Holly Matkin conducted the PSI in the Osornio case.

Dahl said that by the time of sentencing, she and Boucher knew about Osornio's violent conviction for rioting. She pointed out that Matkin, at Osornio's sentencing, made a different recommendation from that of the plea deal. Matkin recommended 10 years with seven suspended - she recommended Osornio be sentenced to three years in the Montana Department of Corrections.

Dahl said that even though a plea deal is reached before all the available information, it doesn't cement anything.

"The initial plea agreement is only between the prosecutor and the defendant. The judge is not a part to that agreement," she said. "The judge can sentence to whatever is appropriate and that's exactly why the PSI is done, so that he has all the information instead of just some recommendations from two people who think that they know. He gets the whole in-depth report and he gets to decide, and he's not bound by that agreement."

Dahl, however, said she is bound by the agreement and cannot change her mind. She said if she had all the information on Osornio that was made available after the PSI, she would have never agreed to a suspended sentence for Osornio. She said she would have probably agreed with the probation officer on three years, or maybe even a "straight" five-year commitment.

While answering the question of whether Boucher is too lenient with defendants, she said, "Sometimes, the defendants in our jurisdiction get more breaks than they should."

The topic of Boucher being too lenient had been brought up before Cohen got shot. A perusal through social media any time a District Court sentence is handed down reveals how divided and passionate the public can be when it comes to Boucher's sentences.

Boucher said he's aware that some people may not always be happy with his sentences. But he has his reasons.

"It's easy to sit on the outside and say you gotta put everybody in jail. Our jails would be full - we are full," he said, before adding that prison is a "hard place" and he doesn't take putting people in there lightly.

Boucher added that he's not allergic to giving maximum sentences.

"I'll tell you who goes to prison. People who continually violate their probation. Most crimes, fortunately, don't involve violence. ... Occasionally, someone will do something against a person, and I can't put all those people in prison. I just can't. There isn't room, and I don't know that they deserve it anyway," Boucher said. "They end up going back because they broke the rules. I got nothing else to do with them."

Boucher said most of the people he's given opportunities to straighten up have done so. He added that Dahl is not out to just throw people in prison, either.

Dahl said the same. She said it is also important to know the Department of Corrections is not necessarily a prison sentence. The DOC has rehab options and many who are sentenced to the DOC are given those options. Defendants in District Court are rarely sent or recommended to be sent to prison, she said.

As for Osornio, the judgment file says the reason Boucher issued his suspended sentence was because the "Defendant was a young man at the time of the offenses. ... This sentence provides adequate supervision for the Department to determine whether Defendant has changed the behavior pattern that developed over the past few years, and he faces significant sanctions should he fail to follow the rules and conditions."

Boucher drafted a warrant for Osornio Dec. 3, seven days before he shot Cohen. Files show that, by then, Osornio had violated conditions of his release and had not reported to his probation officer.

Responding to Cohen's criticism, Boucher said that even if he would have sentenced Osornio to the DOC, it's very possible Osornio would have been out before Dec. 10.

Dahl agreed, to an extent.

"Certainly none of us can see into the future; the judge can't see into the future. If the judge had given him a lengthy term, then Gary (Cohen) is probably right. But even if the judge would have went along with 10 years, with seven suspended, it's possible he could have gotten out early," she said. "It's possible because oftentimes the Department of Corrections sends people to treatment programs. The most common one is called Connections Corrections. That's a 60- to 90-day program and then they go to pre-release. Once they complete that nine months, they are usually conditionally released, paroled, whichever way helps you think about that. ... It's very common."

Cohen doesn't think Osornio will change. Cohen is a trained mental health specialist. His last job included working at the Marion County jail as a case manager, assessing inmates' mental conditions. He said Osornio is a sociopath.

"There are good people who make mistakes. ... They can be rehabilitated," he said. "But this guy is a criminal. If he serves his 25 years, he will come out and commit crimes again. He's a criminal."