Conduct Commission Censures King County Judge

This story was published May 5th, 2006 at komotv.com. By Associated Press.

The state's Commission on Judicial Conduct has censured a King County District Court judge and recommended she be suspended for one month without pay, saying she routinely violated the rights of defendants.

There was no evidence that the actions of Judge Mary Ann Ottinger adversely affected the defendants' cases, the commission said in a 14-page ruling, but "the negligence of the judge cannot be excused." Her actions included failing to advise them of maximum penalties or of the right to an attorney before they entered pleas.

The violations continued for years, even after she was first warned by the commission in 2002. It wasn't until last June, when the commission filed its complaint, that she made substantial changes, requiring public defenders to be present for all arraignments, and since then she has run a "model courtroom," the commission said.

Censure is the highest punishment the commission can impose. The commission recommended the state Supreme Court suspend her for one month without pay.

Ottinger's lawyers, David Allen and Todd Maybrown, had argued that her errors amounted to technical slip-ups predicated largely by a huge caseload. Allen said Friday that Ottinger will not appeal and will be happy to comply with the commission's requirement that she speak to other judges about her mistakes, which Allen said occur in many courtrooms.

"It's a compliment to her they want her to go out and talk to other judges in the county," he said.

The commission's complaint accused Ottinger, 56 and a district court judge since 1992, of denying the rights of 12 defendants during the summer of 2004. One of the 10 commissioners wrote a dissent arguing that Ottinger should be removed from the bench.

Bias claimed in dollars-for-deals cases

This story was published April 14th, 2006 in the Tri-City Herald. By John Trumbo, Herald staff writer.

Anyone who has had a hand in the dollars-for-deals program in Benton County District Court should be disqualified from any case involving someone who paid to get criminal charges reduced or dismissed, says the defense attorney who exposed abuses in the program.

Christopher Herion was the second court-appointed attorney for an Idaho man whose DUI charge in Kennewick was reduced through a donation last year. Herion discovered the abuses while preparing the man's case.

Although Travis Lockie, 31, had two prior DUIs in Idaho, he had made a deal in Benton County District Court through his first attorney to donate to Kennewick's Home Base youth recreation program to get his third DUI charge reduced. But that deal unraveled after he was busted for another DUI the day after his release from Benton County jail.

Lockie subsequently withdrew his guilty plea after the Herald detailed his case, and he is being prosecuted again.

A series of Herald stories since Feb. 11 has revealed that at least $18,000 that was donated to Home Base by several defendants can't be accounted for.

After Herald stories ran, the assistant city attorney involved was suspended and a former public defender resigned his contract.

And the FBI is investigating the program.

In the latest development in the scandal, Herion filed two motions Wednesday afternoon claiming Lockie cannot get a fair hearing from Kennewick's city prosecutors or from any District Court judge or commissioner.

Herion's motions call for the city attorney's office to be disqualified and for judges and court commissioners to recuse themselves.

Herion says his client should be allowed to have deferred prosecution, which is available for a first-time Washington DUI offense, but he doesn't believe it can happen unless an independent prosecutor "from outside Benton and Franklin counties" is appointed.

In the filings, Herion wrote that during a Feb. 16 hearing for Lockie, Judge Eugene Pratt "warned the Kennewick City Attorney's Office not to retaliate" against Lockie.

Three weeks later, assistant city prosecutor Lisa Benton told the court she would oppose deferred prosecution for Lockie, even though it is regularly allowed for defendants who meet court requirements.

Herion's motion also notes that Judge Holly Hollenbeck "advised that he was not inclined to grant a deferred prosecution" even before Lockie "had an opportunity to submit a petition for a deferred prosecution."

Herion said in his motion that Pratt is presiding judge for Richland cases and Hollenbeck is presiding judge for Kennewick cases, and that both "are aware" that both cities operate cash-for-deals donation programs.

Pratt said later he had no comment on Herion's motions, which he will be heard by Hollenbeck next week.

Herion also said dismissals or charge reductions in exchange for donations that were approved by "the judges on the city of Kennewick and city of Richland's dockets are not recognized by court commissioners (Bill) Platts and Eugene Stilwill."

He added: "Therefore, there is no uniform approach to the donation program (and) the Benton County District Court bench is split."

The motions filed included copies of more than a dozen articles published over the past two months by the Tri-City Herald about the problems with Kennewick's and Richland's donation programs.

In asking for the judges and commissioners to recuse themselves, Herion noted the public has questioned the validity of the donation programs. And he added, "No reasonable person could find that any Benton County District Court judge or court commissioner could be fair and impartial in hearing any case involving a donation."

Herion said the donation programs' woes are an embarrassment to the cities and county. He said people who have made donations and who may have information that could help with an investigation as to where the missing $18,000 went are reluctant to come forward.

"Those persons refuse to step forward because they fear they will be re-sentenced and face stiffer penalties much like (Lockie)," Herion wrote in his motion.

Another of Herion's clients also has a DUI donation deal that could fall apart. Jennifer Flores, 22, of Kennewick, paid $2,000 to Home Base in February to dismiss a charge of not having a required ignition interlock device.

The device, which detects alcohol on a driver's breath, was required for her to be on a deferred sentence in a 2004 DUI arrest. But the controversy over the cash-for deals program has put all donation deals like hers in jeopardy, Herion said.

Flores was in District Court on Thursday to see if Commissioner William Platts would honor her donation deal. Herion had told her to expect otherwise because the judges and commissioners were taking a second look at cases in which donations led to dismissal of charges.

The controversial cases drew further unwelcome attention to the Benton County court system on Thursday with publication of a Seattle Times story on the deals. The story featured Flores, whose story was detailed by the Tri-City Herald on March 19.

"I recognize that this court does not approve of donation (deals)," Herion told Platts on Wednesday. And Platts indicated he wasn't inclined to change his mind.

"Your client may be between a rock and a hard spot," Platts said, offering only to "see if I have some discretion."

He said he would give Herion time to "glean the law" before returning to court May 19 to make the case why Flores should not be sentenced for violating the conditions of her deferred prosecution.

If that happens, the $2,000 donation she made to Home Base to avoid a two-day jail sentence for DUI will have gotten her nothing.

"That's just another fallacy of the donation program," Herion said.

Barry Flegenheimer, president of the Washington Association of Criminal Defense Attorneys, said Herion is doing the right thing.

"The donation program seems unethical, illegal and immoral," Flegenheimer said. "There is no place for a prosecutor to have a defendant make a donation to a charity. A donation program guided by prosecutorial discretion is an unfair way to dispense justice," he added.

Judge gets tough on ex-trooper

This story was published November 05, 2005 in the Seattle Times. By Sara Jean Green - Seattle Times staff reporter.

A former State Patrol trooper who was sentenced Friday for fondling 10 women during traffic stops on the Eastside staunchly denied any wrongdoing, claiming his victims accused him of sexual misconduct because they are motivated by money.

"There are people who have reason to bring these charges against me ... because money is a good motivator," Michael Idland told King County Superior Court Judge Ronald Kessler.

But Kessler didn't buy Idland's denial and stunned both the prosecutor and defense by ordering the former trooper to pay for the almost 17 months he spent in solitary confinement in the King County Jail plus $15,000 in victims' penalties and other fees, totaling more than $40,000. The judge also ordered Idland to serve four years of probation, despite a joint recommendation from prosecutors and Idland's attorney that the 41-year-old serve only one year probation.

Idland, who was in solitary confinement for his own protection, was given credit for his jail time and was not sentenced to any additional time behind bars.

After Friday's hearing, King County senior deputy prosecutor Scott O'Toole said Kessler "just hammered" Idland with his sentence.

"The judge was clearly making a statement by imposing severe financial penalties and an extremely long period of probation ... [Idland] will be under an incredibly tight rein, which I think will ease the anxiety of the victims."

O'Toole disputed Idland's claim that the women were looking for a payday. Only one victim came forward; the rest were identified by investigators who pored over Idland's DUI records and contacted women he had arrested, O'Toole said.

"These are not people who came and banged on our doors," he said.

Defense attorney Robert Freeby said he didn't expect such a lengthy probation period nor the stiff fines. Regarding Kessler's order that Idland pay the cost of his incarceration, Freeby said, "I've never seen that happen."

Many of Idland's attacks were near the Evergreen Point Floating Bridge, according to charging papers. He had a pattern of stopping young women on suspicion of drunken driving and then inappropriately touching them under the guise of conducting searches, prosecutors said.

On Friday, one of Idland's victims addressed the court, asking that Idland be ordered to undergo sexual-deviancy treatment. "I don't feel safe," said the woman, whom The Seattle Times is not naming because she is the victim of a sex crime.

Kessler declined, explaining Idland won't be amenable to treatment because he has denied committing any crime. "It would be a waste of time and money," the judge said.

Steve Fogg, an attorney representing Idland's youngest victim, on Friday filed a claim with the state Attorney General's Office, the seventh such claim filed by Idland's victims. In the new claim, which seeks $500,000 in damages, Fogg said the State Patrol had placed Idland on a job performance improvement plan nine months after he became a commissioned trooper and at least one supervisor recommended that Idland be fired.

Instead, in March 2002, Idland was transferred from Seattle to Bellevue, where he was working when he fondled all 10 women.

"He certainly shouldn't have had a gun and a badge after [the State Patrol] knew he wasn't fit to have a gun and a badge," Fogg said.

State Patrol Capt. Jeff DeVere confirmed Friday that Idland was placed on a job performance improvement plan in January 2002 because of problems with taking responsibility for his actions, his judgment, decision-making, written communications and time management.

Idland completed the plan in June 2002, DeVere said. He said the State Patrol did not learn of the sexual-misconduct allegations until January 2004. DeVere said he did not know of any prior recommendations to fire Idland.

"As soon as we found out about the allegations of misconduct, he was taken off the road," DeVere said. "This type of behavior is clearly not tolerated in this agency. ... The actions of one person, we hope, will not tarnish the good work of 2,200 others."

Idland, who was originally charged with three felonies and eight gross-misdemeanors for fondling 10 women, entered a modified guilty plea -- called an Alford plea -- to three charges of sexual misconduct Sept. 29 and was released from custody. The Alford plea means Idland does not admit guilt but acknowledges that a jury likely would convict him.

During his time in jail, Idland was drawing his full salary from the State Patrol until submitting his resignation Oct. 10.

Court rules state can be held liable if supervised felons commit crimes

This story was published September 16, 2005 in the Seattle Times. By Jonathan Martin - Seattle Times staff reporter.

The Washington Supreme Court yesterday tossed out the largest jury award ever levied against the state, but in doing so, it may have exposed state agencies to even larger liability.

The ruling overturned a $22.4 million payout to the family of Paula Joyce, a Tacoma woman killed when her car was hit by a felon who was high on marijuana and blowing through red lights in a stolen Chevy Suburban.

In the year leading up to the 1997 crash, Vernon Valdez Stewart had repeatedly violated the terms of his supervision by the Department of Corrections (DOC), so Joyce's death became a test case on how far the state's liability stretches for felons under supervision.

Writing for a 6-3 majority, Justice Tom Chambers found the state could be held responsible for "lapses of care" such as Joyce's death. The state's supervision of offenders includes "a duty to prevent foreseeable injury," he wrote.

But the ruling also faulted the jury instructions in the trial court and sent the case back to Pierce County Superior Court for a new trial. That vacated the jury award, which had ballooned, with interest, to $33 million after five years of appeals.

With more than 29,000 offenders now under supervision, the ruling opens taxpayers to "virtually unlimited exposure" to financial pay-outs, Attorney General Rob McKenna said in a statement.

"Despite the tragic circumstances, this decision highlights larger questions for the Legislature and the people of Washington," the statement said. "It places liability on DOC for the conduct of offenders that it does not have the authority to control."

Phil Talmadge, a Democrat and former Supreme Court justice, said the ruling is not as dire as McKenna, a Republican, claims. It merely affirms a 1992 Supreme Court ruling in a similar wrongful-death case involving DOC, he said.

"I think [McKenna] is pushing the panic button," Talmadge said.

Washington state waived its immunity from lawsuits nearly 40 years ago, with the belief that it should compensate citizens for official wrongdoing.

Since 1987, Washington has paid out $445 million for all types of claims. The Department of Social and Health Services has paid out the most, $147 million; DOC has paid out $60 million

Jack Connelly, Joyce's lawyer, said the court's decision to send the case back for a new trial prolongs the suffering of Joyce's husband and four children. But he said the ruling also was a boon for public safety because it clearly affirmed the DOC's responsibility to closely monitor dangerous offenders.

"The state should be held accountable for its negligence," said Connelly, a Tacoma lawyer who is president of the state's trial-lawyers association. "In this case, the state was egregiously negligent and should be held accountable for it."

The state's argument that it could not have foreseen Joyce's death, Connelly said, was undermined by what he called "a tragedy of errors."

Stewart, 21 at the time of the crash, had been placed on 24 months of community supervision for convictions in King County of assault and possession of stolen property. He virtually ignored a lengthy set of supervision conditions. His conditions had included staying in King County, paying fines, reporting to his community corrections officer and staying away from controlled substances.

Less than a year into his supervision, he was arrested for speeding in a stolen car in Kittitas County, then was repeatedly hospitalized for hallucinations. His DOC officer failed to report Stewart's mental-health problems or his violations following the Kittitas County conviction, as required.

In all, the corrections officer, Catherine Lo, wrote Stewart up for just three of an estimated 100 supervision violations, according to evidence presented by Joyce's lawyers during a trial in 2000. Had Lo done her job, Connelly said, Stewart could have been in jail at the time of the accident.

"It doesn't make sense for [DOC] to say that it's unforeseeable that a guy will steal a car while on supervision, when he was on supervision for stealing a car," Connelly said. "In order for it to work, you'd have to overlook the facts of the case."

Lo was deported by the Immigration and Naturalization Service a few months before the car crash, and Stewart's new corrections officer had not met with Stewart before the crash, Connelly said. Stewart was convicted of second-degree murder for killing Joyce and is serving a 24-year sentence.

The Joyce family sued the state in 1999.

In a sharply worded dissent yesterday, state Supreme Court Justice Mary Fairhurst wrote it was "nonsensical" to hold DOC accountable for bad behavior by offenders under its supervision.

"Tragic facts alone are not an appropriate basis for establishing a new rule of law," wrote Fairhurst, who represented the DOC for the Attorney General's Office before her election to the Supreme Court.

Kit Bail, who supervises DOC's field offices from King County to the Canadian border, said the ruling probably will not change how DOC supervises offenders.

"Do we read these types of ruling? We'd be silly not to," Bail said. "But this doesn't make us frightened."

The case was closely watched by other government agencies, including the Washington Cities Insurance Authority, which insures about 100 municipalities.

"The ruling makes the state a babysitter for every criminal that gets out of prison," said Stewart Estes, who filed a friend-of-the-court brief on behalf of an insurance pool.

Connelly, the Joyce family's lawyer, said he would ask that the case go back to trial quickly. "The continued wait is unfair to the family," he said. "It's been eight years."