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Washington DA faces discipline over television appearance

Washington DA faces discipline over television appearance

Pierce County, Washington Prosecuting Attorney Mark Lindquist will likely face a disciplinary hearing for comments he made during a television interview on the Nancy Grace Show. Lindquist could face disbarment, as well as suspension from his elected position.

Lindquist appeared on Grace’s show in February 2016 to discuss the murder trial of Skylar Nemetz, which was ongoing at the time. During that appearance Lindquist said the actions of Nemetz, accused of killing his wife, “add up to murder.”

Lindquist told the Tacoma News Tribune that he went on the show to “communicate with the public about what we do and why.”

Nemetz was eventually convicted of first-degree manslaughter. He maintained the shooting of his wife was accidental.

Nemetz’ defense attorney, Michael Stewart, claimed Lindquist’s actions jeopardized Nemetz’s right to a fair trial and violated the professional codes of conduct.

“It’s unheard of. It’s astounding in the way it violates the rules,” Stewart argued to the judge when asking for a mistrial and sanctions against Lindquist. “It was designed to damage Mr. Nemetz during a trial, and your honor should impose sanctions for such behavior.”

Superior Court Judge Jack Nevin declined to declare a mistrial or sanction Lindquist, ruling that the jury did not hear the interview. But complaints were filed against Lindquist by local defense attorney John Cain with the Washington Bar.

In a highly unusual move, the Washington State Bar Association’s Office of Disciplinary Counsel recommended the hearing on Sept. 8. The Counsel’s rationale for doing so is that Lindquist’s appearance on the show might have violated the rules of professional conduct that govern public statements about a criminal defendant, as well as a rule that prohibits conduct prejudicial to the administration of justice.

The Tacoma News Tribune obtained the disciplinary counsel letter recommending a hearing. According to that letter, the two assistant prosecutors trying Nemetz and Lindquist’s spokeswoman all recommended that he decline the invitation to appear on Grace’s show.

Lindquist’s Attorney, Steven Fogg, claims the complaint is politically motivated and that there is no chance Lindquist will be suspended for his actions.

This is not the first time Lindquist has courted controversy during his seven year tenure in office. He has incurred almost $2 million in legal fees, at the taxpayers’ expense, including almost $600,000 spent in a dispute over whether the district attorney’s text messages are public records or private communications.

The Washington Supreme court unanimously ruled against Lindquist in that case, stating that he couldn’t claim all of his text messages were private because he was communicating from a private phone. The ruling asserted that Lindquist’s texts are public if public business is discussed.

Lindquist continues to argue that his texts are private, even though some involve communication with other county employees. His stance cost the county $118,000 in fees and fines when a judge ruled that Lindquist had to turn over text messages requested by a critic. That case also cost the county about $325,000 in legal fees, which was part of the $2 million figure..

There is also currently a whistleblower lawsuit pending against Lindquist. The lawsuit argues that he has been vindictive and has created a hostile work environment. The Pierce County Human Resources Department issued a 67-page report finding that Lindquist ordered his prosecutors not to strike plea deals with a group of defense attorneys who had angered him, bragged that he would get $100,000 in free publicity from the shooting of four police officers for his re-election campaign, and maintained that he had advanced the careers of some of his favorite employees in the hopes of making them judges.

“I elect judges, the people don’t,” Lindquist is quoted as saying in the report.

Lindquist’s office also has the highest rate of reversed convictions in the state.

The Seattle Times called for Lindquist to resign in a December 2015 editorial, writing that he “has managed to squander a once-promising career in public service. His unwillingness to accept responsibility for a dysfunctional office telegraphs his leadership style — and his values.”

Harris County D.A. will no longer prosecute “trace cases”

Harris County D.A. will no longer prosecute “trace cases”

Harris County District Attorney Kim Ogg made good on a central campaign promise this week, announcing that her office will no longer prosecute “trace cases” that involve trivially small amounts of drugs, or drug residue. In an interview with the Houston Press, Ogg said that although there is still no formal policy prohibiting these prosecutions, her office stopped pursuing such cases in late July.

“It’s been a point of contention with most Houstonians who don’t appear to agree that it’s a wise use of taxpayer dollars to prosecute people in possession of empty crack pipes that contain drug residue,” Ogg told the Press. “And while not all the cases follow that example, many, many do.”

Trace cases have a politically volatile history in Harris County. Heeding the broader shift toward criminal justice reform as Texas struggled with its bloated prisons, former District Attorney and Republican Pat Lykos changed the office’s policy when she took office in 2010, instructing her deputies to prosecute cases involving 1/100th of a gram of drugs as misdemeanors, rather than felonies as the office had in the past. The move saved the county money and greatly reduced its crowded jail population.

But it also drew the ire of local law enforcement, who argued that their ability to file felony charges in residue cases was instrumental to efforts to lock up people guilty of robberies and burglary. By the end of 2011, a coalition of six Harris County police groups had announced a vote of “no-confidence” in Lykos.

When Lykos lost her seat to Mike Anderson in late 2012, the new district attorney made reversing her policy on trace cases one of his first priorities. After Anderson passed away in 2013 and his wife Devon Anderson took his place, she maintained his policy, and the office continued to charge drug residue cases as felonies. The prosecutions of trace cases became a prominent point of contention between Anderson and Ogg on the campaign trail.

Unlike Lykos, Ogg is moving forward with the support of the Houston Police Officer’s Union, though it is tempered. The union’s president, Ray Hunt, told the Houston Press that “we’re not going to make a big deal about this as long as these people who break into cars, which we believe are the big crack users, that when we catch them, they’re hammered and they’re not given slaps on the hand.”

As shown in other jurisdictions, assurances from district attorneys that they will step back from prosecuting certain crimes don’t always have meaningful results. In Brooklyn, for example, former district attorney Ken Thompson made waves in 2014 when he announced his office would no longer prosecute most low-level marijuana cases. After Thompson passed away, current district attorney Eric Gonzalez took his place, vowing to maintain Thompson’s policies.

But a recent investigation from WNYC found the Brooklyn District Attorney’s office only throws out roughly one out of every five low-level marijuana arrests. (Gonzalez said he believed most of these charges were for smoking marijuana, which is classified as the same misdemeanor as low-level possession, and contends his office is still working to reduce possession prosecutions.)

Now, Houstonians will wait to find out if Ogg’s word — which again, is not yet a written policy — will make a meaningful dent in the number of trace case prosecutions in the county. With voters and local law enforcement behind her, there is little reason for her to stray from her stance.

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When Some People Are Below The Law

When Some People Are Below The Law

Can a prostitute be raped? As a young law student, this was an interesting question. As an experienced lawyer, this is a no brainer. The answer is: of course. The fact that someone may have engaged in illegal acts does not give other people license to commit crimes against that person. This is true because, under our justice system, no one is supposed to be above the law and no one is supposed to be below it.

However, the justice system in this country does not always operate as it should. The recent killing of Anthony Smith reminds us that, in fact, certain people are considered below the law. Judicial Circuit Judge Timothy Wilson’s decision to acquit St. Louis Metropolitan Police Department Officer Jason Stockley of all charges drips with disdain for Smith.

As a long-time prosecutor who has tried dozens of cases before juries, I recognize that I am not in a position to second-guess the decision of someone who sat through the entire trial and observed the composure of witnesses. Having never been a police officer, I am also not qualified to judge the level of danger they face in order to keep communities safe, though I know that many brave officers are killed in the line of duty. But, I do know how to recognize a biased decision where one side has clearly been given every benefit of the doubt and the other side is largely dismissed as a couple of thugs who basically deserved what they got.

In brief: On December 20, 2011, two officers, Jason Stockley and Brian Bianchi, drove by two people, Anthony Smith and Kirkwin Taylor, engaged in what the officers deemed suspicious behavior. When the officers rapidly pulled their car behind Smith’s car, Smith and Taylor jumped in their car, rammed the officers’ car twice, purportedly struck Stockley’s hand that was holding a gun, and then quickly drove off. Smith drove into oncoming traffic on the wrong side of the road and Bianchi intentionally rammed into Smith’s car, causing it to crash. Stockley and Bianchi then both ran up to the driver side of the car. Stockley appeared to be wrestling with something or someone. Seconds later, Stockley fired 5 bullets into Smith, one from no more than six inches away. Bianchi, who was in a position to watch what was happening, never unholstered his weapon. Smith died after being removed from his car. Later — and after reaching into his own car — Stockley climbed into Smith’s car and claimed to have found a gun tucked between the seat and the center console. Stockley’s DNA was found on the gun. Smith’s was not.

Judge Wilson spent 30 pages explaining his not guilty verdict without once expressing concern about the officers’ conduct. He summarily dismissed audio of Stockley saying during the chase “we’re killing this m…f…er, don’t you know,” because the words before and after are garbled and he maintained he couldn’t determine the context.

I’m not sure there are any innocent contexts when someone is heard saying “we’re killing this m…f…er” and the m…f…er is then killed.

Judge Wilson noted that when Smith drove at speeds up to 87 miles per hour on wet roads, he was “endangering other drivers and pedestrians.” He did. But Judge Wilson failed to mention that when Stockley fired shots at that moving vehicle, he, too, endangered other drivers and pedestrians.

Though prosecutors argued that Stockley likely planted the gun, Judge Wilson seemed unconcerned that the same officer who had just shot Smith at short range also searched Smith’s car and unloaded the gun without gloves. He never suggested in his opinion that these tasks would more appropriately have been handled by a crime scene officer.

Judge Wilson also wrote that “based on . . . nearly thirty years on the bench, . . . an urban heroin dealer not in possession of a firearm would be an anomaly.” Judge Wilson is clearly not a statistician. Even assuming Smith was “an urban heroin dealer” in St. Louis, a city where 256 people died of heroin overdoses in 2016, it is unlikely that Judge Wilson knows whether he was an anomaly or not. But it is a cute line to dirty the decedent. Judge Wilson also denied considering Smith’s felony record, though, conveniently, he mentioned the marijuana in his system.

I do not know why the State did not call Officer Bianchi to the stand. It did call Smith’s passenger, Taylor, who testified that he never saw a gun in the car. Judge Wilson dismissed Taylor’s credibility, in part because of a felony drug conviction that resulted in a suspended sentence.

I do not pretend to know what happened on December 20, 2011. But I do know what Judge Wilson wrote on September 15, 2017. His opinion makes it clear that, as long as he presided as judge, the State was probably not going to win a trial with Anthony Smith as the victim. And I understand why that upsets some people, including me.

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