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The former Prosecuting Attorney of Yakima County has been formally admonished by the Washington State Bar Association’s Disciplinary Board for his attempt to have a judge he personally objected to removed from a case outside the standard motion practice for recusals.

As reported by the Yakima Herald, the action by the disciplinary board is based on a letter that then Prosecuting Attorney Jim Hagarty wrote to the county’s presiding judge early last summer asking him to intervene in a pending murder trial by either encouraging the judge in the case to recuse herself, or by removing her on his own motion.

Hagarty was not the prosecutor in the case, and none of the attorneys involved, prosecutors or defense, had made any requests for recusal at the time that Hagarty sent his ex parte letter to the presiding judge.

For our purposes here at the Open File of encouraging prosecutorial accountability, it’s worth briefly anatomizing how this successful disciplinary action came to pass.

A concerned citizen and court official

When defense counsel learned of Hagarty’s letter, they moved to have the murder charges against their clients dismissed on the grounds of prosecutorial misconduct in attempting intervene with or intimidate the tribunal.  But it was not the defense attorneys themselves who instigated the complaint to the state bar association.

That action was taken by Harold Delia, the court consultant for Yakima County Superior Court (court consultants are in-house advisers to court systems on the efficient administration of cases, working with clerks and judges to monitor and improve internal systems).  Though clearly a part of the criminal justice system, Delia told the Yakima Journal last summer that he filed the complaint against Hagarty not in his official capacity but as a concerned citizen.

In his letter to the disciplinary board, Delia wrote:

As a result of [Hagarty’s] letter…the trial date has been delayed, which effects the speedy trial rights of the defendants. The work and focus of the trial attorneys has shifted from the prosecution and defense of the crimes alleged to the effort by Prosecutor Hagarty to influence the course of the case. As a result of his ex parte contact the trial court will be required to conduct evidentiary hearings as to prosecutorial misconduct. The letter has caused undue publicity to be focused on each of the cases which could impact each defendant’s ability to have their case heard by a fair and impartial jury. This letter has had a direct impact and cost on the administration of justice, the rights of each of the defendants, and potentially impacts public safety. It is, at a minimum, an attack on the integrity of the judicial system.

This was not an ex parte communication by the deputy prosecutor assigned to the case but a personal letter by Prosecutor Hagarty. The letter is an attempt by the elected prosecutor to embarrass or effect Judge Reukauf’s decision making in the four pending cases. This ex parte letter has no legal or ethical purpose.

As for his reasons for filing the complaint, he said:

I’ve been in this business for 40 years, and I have never seen anything like this before.  This strikes at the heart of the legal system, and if we allow this kind of behavior to occur, I believe we are attacking the rule of law and how our system works.

Delia sent the complaint to the state bar two days after Hagarty’s letter caused the preparations for the trail to be put on hold.  The effect was apparently swift.  Within a few days Hagarty’s office publicly backed off the attempt to remove the judge.

This was hardly the first sign of trouble in Hagarty’s term as Prosecuting Attorney.  His office had earlier been forced to reduce first-degree murder charges to theft and firearm charges following investigative misconduct, and a prosecutor being held in contempt of court for failing to turn over evidence to the defense in a timely manner.

It is impossible to say, then, exactly what went into Hagarty’s political calculations, but the facts are that six weeks after Delia filed his bar complaint, Hagarty decided not to run for re-election.

A Prosecutor Held Accountable

There are several commendable things worth noting about this whole episode.  First, a person not a party to the litigation, but with close knowledge of it, is the one who took it upon himself to try to hold an elected prosecutor accountable.

Second, in a rare move, clearly grounded in his expertise, the man filing the complaint cited not just harm to the rights of the defendants, but “a direct impact and cost on the administration of justice,” as one of the elements that made the letter improper and harmful.  This is worth remembering: prosecutorial misconduct costs money.  And regardless of their other positions on criminal justice, all legislators are presumably in favor of lessening those costs.

Finally, in what often seems a similarly rare occurrence, a state bar actually followed through, did its job, and despite the prosecutor in question already being out of office–an easy excuse to let the case fade away–it publicly admonished Hagarty for his behavior.

The Yakima Journal concludes it best:

The admonition does not carry any sanctions or disciplinary actions, but Delia said he’s satisfied.

“For me, I wanted to make sure that it doesn’t happen again,” he said of Hagarty’s previous actions.

“I wasn’t really that interested in what the punishment was; I was more interested in that he was accountable for what he did, and I think this makes him accountable.”

Reached by phone, Hagarty said he has no comment on the order.

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