It’s rare in the state of Washington for so-called “prosecutorial misconduct” to lead to the reversal of someone’s criminal conviction. A prosecutor’s mistake in those instances must be so “flagrant and ill-intentioned” that nothing short of a new trial would correct it.
What’s not unusual is for one of those instances to come from Pierce County.
An analysis by The News Tribune found that 14 cases statewide since January 2013 have been overturned because of prosecutors’ actions during trial.
Of those, six cases — almost 43 percent — were handled by the Pierce County Prosecuting Attorney’s Office. In three of those, the errors were committed by veteran attorneys in leadership positions in Prosecutor Mark Lindquist’s office.
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Lindquist and his leadership team attribute the high percentage of misconduct-related reversals in part to what they consider higher court decisions not always consistent with established precedent.
He and his team held the Washington State Supreme Court up to special criticism, saying it has unjustly overturned some Pierce County jury verdicts.
In one case, the high court overturned the conviction of a man found guilty of masterminding the murder of an armored-car guard based on a ruling that hadn’t been issued when the man’s trial was underway, said Lindquist and his chief appellate attorney, Kit Proctor.
“They changed the rules on us in the middle of the game,” said Lindquist, appointed to head the prosecutor’s office in 2009 and victorious in elections in 2010 and 2014. “Once we know what the rules are, we’re going to abide by those rules.”
Wendy Ferrell, judicial communications manager for Washington State Courts, said the Supreme Court would have no comment on the Pierce County prosecutors’ criticism.
“The Supreme Court’s opinions speak for themselves,” Ferrell said.
Reversals come at a high cost in terms of public money spent and judicial resources expended.
For example, Pierce County spent more than $385,000 to prosecute and defend Dorcus Allen, cop killer Maurice Clemmons’ alleged getaway driver, only to see the case overturned because of deputy prosecutors Stephen Penner and Phil Sorensen’s mistakes at trial. Allen’s case is back in Pierce County for retrial.
Overturned convictions also bring emotional trauma to victims and their relatives, who must endure again what can be a grueling legal odyssey.
“It deflates them,” said Lew Cox, founder and executive director of Tacoma’s Violent Crime Victim Services, a victim-advocacy agency. “They’ve been picking up the pieces of their lives, thinking it’s over with. Now, they’re back on this roller coaster.”
The state’s Supreme Court has said there is yet another cost for cases overturned because of prosecutorial misconduct: Undermining “the integrity of the entire criminal justice system.”
Greg Link is an attorney with the Washington Appellate Project, a nonprofit group that provides legal services to indigent clients throughout Washington and has written appeals for Pierce County defendants, including Allen.
“It’s my feeling that it is a systemic problem in that office,” Link said of the high percentage of prosecutorial-misconduct findings from Pierce County. “I work with prosecutors around the state, and from what I’ve seen Pierce County stands out in that regard.
“They also stand out for their willingness to try to defend it on appeal. Many prosecutors will admit that misconduct took place but will argue it wasn’t prejudicial. Pierce County fights the misconduct ruling itself.”
Last month, Superior Court Judge Edmund Murphy, citing “prosecutorial vindictiveness,” threw out a high-profile child-sex abuse case being pursued by Lindquist’s office.
Lindquist said recently that his office practices a “vigorous” form of prosecution but that he does not think his deputies are overly aggressive.
Still, chief appellate attorney Proctor said, she is encouraging deputy prosecutors during closing arguments to dial back their use of PowerPoint presentations, which higher courts have identified as an area in which prosecutors are susceptible to crossing the line.
“Believe me, we are worried about every reversal,” she said during a meeting of The News Tribune’s editorial board that also was attended by Lindquist and his chief of staff, Dawn Farina.
Lindquist said it’s important to curtail the number of cases overturned by the higher courts.
“We don’t want families to have to go through this,” he said. “We don’t want the community to go through this.”
SEVERAL HIGH-LEVEL REVERSALS
Prosecutors’ behavior during criminal trials is held to a higher standard than that of defense attorneys because prosecutors occupy a special role in the criminal justice system.
They are tasked with prosecuting lawbreakers but also, as representatives of the state and quasi-judicial officers, with ensuring criminal defendants are treated fairly.
“A prosecutor does not fulfill either role by securing a conviction based on proceedings that violate a defendant’s right to a fair trial — such convictions in fact undermine the integrity of our entire criminal justice system,” state Supreme Court Justice Mary Yu wrote in a January opinion overturning Odies Walker’s conviction.
A recent series of reversals of high-profile cases in Pierce County prompted The News Tribune to look into prosecutorial-misconduct findings against local prosecutors.
The overturned convictions included those of Walker, found guilty of aggravated first-degree murder in the death of armored-car guard Kurt Husted, and Dorcus Allen, also convicted of first-degree murder in connection with the shooting deaths of four Lakewood police officers in 2009.
The newspaper examined more than 250 appellate or Supreme Court decisions issued statewide since January 2013 in which defense attorneys raised the question of prosecutorial misconduct during an appeal.
The newspaper chose that time frame for review because appellate opinions issued since January 2013 are readily available online.
The state Court of Appeals and the Supreme Court found prosecutors committed an error of some variety — misstating the evidence, vouching for a witness, appealing to a jury’s passion or prejudice — in about a quarter of those cases.
Pierce County prosecutors were found to have committed such trial errors in 11 cases since 2013. King County prosecutors made such mistakes in 13 cases, and prosecutors in 13 other counties were found to have committed misconduct of some variety during trials.
But the standard for overturning a case because of a prosecutor’s error is steeper than just finding he or she made a mistake.
The higher courts also must find that the error was “so flagrant and ill-intentioned” that it undercut the defendant’s right to a fair trial so severely it could not have been cured by the trial judge giving an instruction to the jury.
The News Tribune’s analysis found 14 cases statewide that fit that bill: six Pierce County cases, three from Thurston County, two from Mason County, and one each from Lewis and King counties.
In addition, there was the case of Pierce County Superior Court Judge Michael Hecht, who was prosecuted by the state Attorney General’s Office on charges of felony harassment and patronizing a prostitute.
CLOSING ARGUMENTS FAULTED
Deputy prosecutors’ missteps during closing arguments were the bugaboo during each of the Pierce County cases.
Farina, Lindquist’s chief of staff, was dinged for repeatedly asserting her opinion of Walker’s guilt and for injecting race, whether intentionally or not, into a trial in which race was not a factor.
Penner, Lindquist’s chief criminal deputy, and former prosecutor and current judge Phil Sorensen were chastised for repeatedly misstating the law during closings in Allen’s trial.
John Sheeran, who heads Lindquist’s felony division, saw a case overturned for what the Supreme Court called “pervasive misconduct,” including bickering with defense counsel in front of the jury and whispering to jurors during his closing argument, among other things.
Deputy prosecutors John Neeb, Jennifer Hernandez and Thomas D. Howe, who now works with the Attorney General’s Office, also were found during the time analyzed by The News Tribune to have committed errors that led to convictions being overturned by higher courts.
In one of the most recent Pierce County reversals — that of Walker, published Jan. 22 — the Supreme Court addressed Farina’s use of PowerPoint in making her closing argument and issued a rebuke: “It is regrettable that some prosecutors continue to defend these practices and the validity of the convictions obtained by using them.”
In a Pierce County case decided in 2012, the Supreme Court ruled that prosecutors had to be careful about how they use PowerPoint presentations.
In a 5-4 decision, the high court said that then-Pierce County deputy prosecutor John Hillman committed misconduct when he used a booking photograph of defendant Edward Glasmann with the words “guilty, guilty, guilty” superimposed on it in red letters.
“A prosecutor could never shout in closing argument that ‘Glasmann is guilty, guilty, guilty!’ and it would be highly prejudicial to do so,” Chief Justice Barbara Madsen wrote for the majority.
“Doing this visually through use of slides showing Glasmann’s battered face and superimposing red capital letters (red, the color of blood and the color used to denote losses) is even more prejudicial.”
The decision overturned Glasmann’s convictions for assault, attempted robbery, kidnapping and obstructing a law enforcement officer. His case was sent back to Pierce County, where it still is being litigated 11 years after he was arrested.
PROSECUTORS: LAW BEING SHIFTED
Lindquist and Proctor, his chief appellate attorney, point to the Glasmann case as an example of the Supreme Court shifting the law out from under prosecutors.
Proctor told The News Tribune’s editorial board that she’s not sure whether Hillman even showed jurors the slides of Glasmann that the Supreme Court cited in its decision.
The slides were in a draft PowerPoint presentation, but Hillman does not think he used them during his closing argument, she said.
Hillman, who went to work for the Attorney General’s Office after the Glasmann trial, used similar slides when he successfully prosecuted Hecht in 2009. The appeals court, citing the Glasmann decision, overturned Hecht’s convictions last year, and the Attorney General’s Office decided not to retry him.
Last June, the appeals court also citing Glasmann, overturned the conviction of a Thurston County man after prosecutors there used similar slides.
Proctor told The News Tribune editorial board that the Glasmann decision is bad law.
Jurors are carefully and clearly informed that a deputy prosecutor’s closing argument is not evidence but strictly a summation of what he or she thinks the evidence shows, she said.
Jurors are presumed to follow those instructions in reaching a verdict, Proctor added.
In rare cases, an instruction, even if given at the trial level, is not enough to overcome a prosecutor’s misconduct, the high court has said.
‘SERIOUS MISCONDUCT’ WITH POWERPOINT
That’s what happened in the Walker case, the only one of the six Pierce County convictions reversed because of the Glasmann ruling.
Farina’s PowerPoint presentation contained about 250 slides. More than 100 of them were headed with the words, “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.”
One of her slides showed Walker’s booking mugshot with the words, “GUILTY BEYOND A REASONABLE DOUBT,” written across it in red letters.
Justice Yu, writing for a majority that included five other justices, said Farina went over the top.
“The prosecution committed serious misconduct here in the portions of its PowerPoint presentation discussed above — it included multiple exhibits that were altered with inflammatory captions and superimposed text; it suggested to the jury that Walker should be convicted because he is a callous and greedy person who spent robbery proceeds on video games and lobster; it plainly juxtaposed photographs of the victim with photographs of Walker and his family, some altered with racially inflammatory text; and it repeatedly and emphatically expressed a personal opinion on Walker’s guilt,” Yu wrote.
“I don’t think I pounded it into the pavement with my presentation,” she said. “I have an issue with that.”
Yu went on to write that the majority agreed with a concurrence written by Justice Sheryl Gordon McCloud that went into greater detail about the racial nature of Farina’s closing argument.
Farina’s PowerPoint included five slides that contained three quotations from Walker in which he used the N-word, according to a hard copy of the presentation The News Tribune obtained through a public records request.
One slide showed a photograph of Walker and his family at dinner after Husted’s death with the sentence: “This is how you murder and rob” (N-words) “next time it will be more money.” The News Tribune has chosen to use shorthand for the N-word, but Farina used the actual word in her presentation.
“The problem is that the state altered the photo of the black defendant and his black family, at dinner, by superimposing on it a quote highlighting race as some kind of important factor with the moniker, ‘(N-words),’ ” McCloud wrote.
“There is no denying that this word is powerful, gripping and emotional. But it was irrelevant — there was no indication of a racial motive in this case, and indeed, the victim apparently referenced was not even black.
“It also created imagery highlighting the defendant’s race — his blackness — in a case where that had absolutely no relevance. That alteration of the evidence is inflammatory, whether the prosecutor intended it or not.”
Farina told The News Tribune she did not intend to inject race into the case when she included that slide in her PowerPoint presentation. Rather, she said, she wanted to remind jurors of what Walker allegedly said and how he used his ill-gotten money.
“We call that a confession,” Lindquist said in support of his chief of staff.
Farina also pointed out that the Glasmann decision had not been published at the time of Walker’s trial, that the defense did not object to her use of the N-word in her closing argument, and that the statement and photograph the high court objected to had been admitted as evidence.
“I think that’s significant,” said Farina, a 26-year prosecutor.
“The evidence showed that those words came out of the defendant’s mouth,” she said. “Prosecutors are allowed to draw reasonable inferences from the evidence during closing argument. That’s the point of closing argument.”
Yu’s opinion stated that prosecutors knew long before the Glasmann decision that “visual aids must be used only for their proper purpose.”
The justice also dispensed with Farina’s contention that her PowerPoint couldn’t have been too prejudicial because the defense did not object.
“The state’s misconduct here was so flagrant, pervasive, and prejudicial that it could not have been overcome with a timely objection and an instruction to the jury to disregard the improper slides,” Yu wrote.
Farina said that, had Glasmann been decided before her closing in Walker, she would have changed her PowerPoint to comply with that ruling.
The Prosecuting Attorney’s Office is preparing pleadings to appeal the Walker decision to the U.S. Supreme Court.
A draft brief to the nation’s highest court authored on behalf of the county by attorney Stephen Trinen was shared with The News Tribune by Farina.
In it, Trinen writes that the state Supreme Court’s opinion in Walker “was improperly based on an unsupported theory of the overwhelming effect of PowerPoint on jurors, as well as a theory of implicit racial bias in the criminal justice system.”
“The result of the opinion is that it has an improper and overly chilling effect on prosecutors’ closing arguments,” Trinen wrote. “Insofar as they are unable to know where the proper boundaries are, prosecutors are necessarily required to censor themselves unnecessarily in order to avoid an after-the-fact reversal where no objection was ever made.”
Lindquist and his leaders also speculated that a higher case load might skew the numbers, although state court records show King County prosecutors tried more cases in 2013-14 than Pierce County — roughly 670 to 400 — with one conviction overturned because of a prosecutor’s mistake at trial.
“Unlike mistakes made by trial judges and defense attorneys, which are called ‘errors,’ mistakes by prosecutors are labeled ‘prosecutorial misconduct,’ even when the prosecutor’s conduct is ethical,” Proctor said last week in response to follow-up questions from The News Tribune.
“Sometimes an argument made by a prosecutor can be transformed into ‘misconduct’ when the law changes after the argument is made.”
HOW KING COUNTY DOES IT
Mark Larson is the chief criminal deputy prosecutor for King County, the state’s largest.
Since January 2013, King County prosecutors had one conviction overturned because of prosecutorial misconduct. In that case, a deputy prosecutor told jurors about the defendant’s refusal to consent to a warrantless seizure of his DNA and argued that was evidence of his guilt.
Larson said his office takes a systematic approach to avoiding reversals because of prosecutorial misconduct.
Among other things, it compiles an annual list of prosecutorial misconduct complaints and submits them to a committee of senior attorneys for review. The deputy prosecutor found to have committed misconduct is interviewed and counseled, Larson said.
The office’s appellate team also keeps track of developments in the law regarding prosecutorial misconduct, Larson said, and deputy prosecutors received training and updates.
“You do have to pay attention to this area,” he said.
Larson said recent rulings such as Glasmann and Walker might signal the end of PowerPoint as a ubiquitous tool for prosecutors.
“I think the sun is setting on it,” he said. “The court is worried about using PowerPoint as a way to editorialize.”
Proctor said Pierce County’s appellate division also reviews instances of prosecutorial misconduct with the deputy found to have committed it.
“In some instances, this discussion becomes the topic for one of our in–house continuing legal education classes; these also occur when there is a change in the law,” Proctor said. “Our appellate division regularly offers advice and training to avoid prosecutorial error and to keep up with changes in the law. We review all published cases across the state for lessons to be learned.”
LINDQUIST: PROUD OF PROSECUTORS
Lindquist’s office does not make a habit of vetting a deputy prosecutor’s closing argument before it’s delivered.
Lindquist said he trusts his attorneys to do professional work, and, because of their heavy caseloads, reviewing their closing arguments before they’re delivered is unworkable.
“We have neither the time nor the inclination to do that,” he said.
Lindquist said he is proud of the work his deputies perform and that the community seems to support the way his office prosecutes cases.
“We represent the community with vigor, fair play and an eye toward justice,” Lindquist said last week. “The men and women in our office prosecute about 6,000 felonies a year and do an outstanding job of protecting the community.”