In an exceedingly rare development in the world of district attorneys offices, a 33 year veteran of the Pierce County, Washington prosecutor’s office has filed a whistleblower complaint against District Attorney Mark Lindquist, alleging systematic and wide-ranging misconduct, mismanagement, and illegal politicizing of the office.
According to the News Tribune, which has the full story, Steven Merrival’s filing with the county’s human resources division and state auditor’s office is a “15-page complaint and 56 pages of attachments,” which “list 90 people who Merrival says have knowledge of the alleged circumstances. Those people include other deputy prosecutors and local defense attorneys.”
Among the remarkable allegations are the “selective and ‘vengeful application’ of [Brady] disclosures involving law enforcement officers called to testify as witnesses in criminal cases.”
Merrival contends Lindquist’s office does not disclose such material in a timely fashion to defense attorneys, that prosecutors are not trained in the office policy and that Brady disclosures are used against officers who have criticized Lindquist.
This comes from a “veteran deputy prosecutor,” who further alleges that “[m]anagement holds meetings and instructs those present not to document the content of the conversation and otherwise discourages documentation or other affirmation in writing of questionable directives.”
I’m 62 years old, and I’ve served Pierce County as a deputy prosecuting attorney since 1982 — 33 years. I started when Lindquist was still in school. I remember when prosecutorial misconduct was the exception and happened somewhere else. I’m doing this because I hope that one day the prosecutor’s office can re-establish trust, serve the people and do justice.
This dramatic development comes against the backdrop of what was already a troubling set of reports about Lindquist’s office.
A Pattern of Misconduct
Back in December, the Marshall Project ran a highly informative piece on the use and abuse of PowerPoint slide presentations by prosecutors in multiple jurisidictions. By emblazoning the word “guilty” over mug shots of defendants, and using a host of other prejudicial visual cues, it demonstrated how prosecutors routinely skirt rules governing closing arguments.
This was a particular problem in Pierce County, several of whose cases were highlighted in Ken Armstrong‘s piece.
In December 2012 the Washington Supreme Court threw out Glasmann’s [Pierce County] convictions based on the “highly inflammatory” slides. As a general rule, courts don’t want prosecutors expressing their personal opinion to a jury; they’re supposed to couch their arguments in terms of what the evidence shows. Plastering the word “GUILTY” on a slide—not once or twice, but three times—was a “flagrant and ill intentioned” violation of this principle, the Washington Supreme Court wrote. The captions superimposed on the photos were “the equivalent of unadmitted evidence.”
One justice, Tom Chambers, wrote that he was stunned at the state’s contention that there was nothing wrong with digitally altering the booking photo. “Under the State’s logic, in a shooting case, there would be nothing improper with the State altering an image of the accused by photoshopping a gun into his hand,” Chambers wrote.
Then, last month, thanks to the thorough reporting of the News Tribune, we learned that Pierce County’s prominence in the article was no coincidence. In fact, the county leads the state in convictions overturned due to prosecutorial misconduct, accounting for 43% of all such reversals since 2013.
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.’
You can read the News Tribune’s useful and well-researched summary of six of these cases here.
Yet, all this said, improper closing arguments were not the only evidence of the overly aggressive tactics used in Lindquist’s office. In March, in a highly unusual move, a judge dismissed charges of child rape on the grounds of “prosecutorial vindictiveness.”
In 2010 Lynn Dalsing was arrested for raping her own daughter. A year later those charges were dismissed. Dalsing sued the county for false arrest, and was apparently making progress in her civil suit this spring. At which point, Linquist’s office reintroduced the charges against her, in what the judge decided was a “vindicate” attempt to intimidate Dalsing and gain advantage in the civil litigation. The judge dismissed the charges a second time, this time with prejudice.
Prior to Merrival’s whistleblower filing, Lindquist had defended himself and his staff in the pages of the Tribune, arguing that the Washington State Supreme Court should stop labeling as “misconduct” what he suggests are unintentional “errors,” and saying “[w]e got the message” about visual technology.
Yesterday’s developments, however, shed a very different light on these claims. According to Merrival’s complaint, “Lindquist expends inordinate public resources to include DPA involvement in efforts to persuade favorable media coverage in a manner that best promotes Lindquist or his version of events, and disparages his adversaries,” and he, “approves press statements that contain incorrect representations about his management of the office.”
It adds that Lindquist expects employees to support his political activities and that retaliation follows if they do not.
It also outlines efforts by Lindquist’s office to place his favored staff members in leadership positions in the Tacoma/Pierce County Bar Association and the local prosecutor’s union.
The complaint contends Lindquist keeps tabs on union meetings and votes, lobbies the union to contribute to favored candidates and monitors employees who do not support his political agenda.
Whatever attempt Lindquist had been making to gloss over the disproportionate reversal rate in his office by asking the Supreme Court to change its nomenclature, and telling his attorney’s to use a few less PowerPoint slides is now clearly in disarray.
Meanwhile, we will be following with interest the public and institutional response to the allegations now made from within the district attorney’s office itself.
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.