Pierce County deputies accused of perjury may take stand Wednesday

A relatively minor criminal case has landed two Pierce County sheriff’s deputies in big trouble.

Jeff Montgomery, 35, and Rex McNicol, 48, are on trial in Superior Court, accused of perjuring themselves in a pretrial hearing last year in the case of a convicted felon accused of illegally having a gun.

Montgomery and McNicol, who are on unpaid leave, face the prospect of losing their careers and possibly their freedom if convicted.

Their trial, which began Monday, has featured allegations of wrongdoing on the part of a deputy prosecutor, a defense lawyer testifying as a witness and a sheriff’s detective sergeant giving damning testimony against his colleagues.

The defendants are expected to take the stand Wednesday.

At issue is a January 2009 incident at an Orting-area home.

Dispatchers sent Montgomery and McNicol to check on the welfare of a 12-year-old boy who lived there. The boy had called 911 to report his mother and her boyfriend were drug addicts and that the boyfriend had a gun in the house.

On the way to the house, Montgomery ran a background check on the boyfriend, Robert Barham, and discovered he was a convicted felon prohibited from having a firearm.

Once there, according to a report Montgomery filed the night of the incident, Montgomery talked to the boy outside while McNicol went inside the house with Barham to retrieve the rifle, which Barham admitted to having.

The deputies then arrested Barham. It seemed like an open-and-shut case.

That is until defense attorney Kirk “Chip” Mosley challenged the legality of the seizure. Mosley contended the deputies didn’t have the authority to enter the home.

Deputy prosecutor Kawyne Lund disagreed, and Superior Court Judge Rosanne Buckner held a hearing on the matter.

During the March 16, 2010, hearing, Montgomery and McNicol testified that neither of them went inside the house that night. They said, instead, that they allowed Barham to go inside unescorted to retrieve the rifle.

Mosley pounced on their testimony, pointing out it contradicted Montgomery’s written report, which stated several times that he and McNicol both had gone inside at some point. McNicol did not write a report on the case.

The judge dismissed the charge against Barham, declaring the deputies’ testimony did not “produce clear and convincing evidence as to their credibility,” according to court documents.

Lund, the deputy prosecutor, later reported the deputies’ in-court behavior to their superiors, who launched a criminal investigation and an internal review.

Felony charges followed in July 2010.

During testimony Monday, Lund told jurors she was caught off guard during the March 2010 hearing when the deputies testified they hadn’t gone into Barham’s house.

Neither deputy said anything to her ahead of time to indicate they planned to contradict Montgomery’s report, she testified. McNicol disputes that.

At one point, the veteran prosecutor testified, she came to the conclusion the deputies were lying.

Attorney Brett Purtzer, who is representing Montgomery, asked Lund why she didn’t stop the hearing and report her suspicions to Mosley or Buckner. As an officer of the court, she had a duty to see justice done fairly, Purtzer said.

Lund testified she was shocked by what was happening and didn’t want to make such a serious accusation without thinking about it for a while and discussing it with colleagues.

“My head was spinning, to be perfectly honest,” she said.

She also said she thought she could still win the hearing, despite the apparent lying. The deputies had the right to go inside the house, Lund testified.

Purtzer and attorney Cliff Morey, who represents McNicol, later asked Superior Court Judge John Hickman to dismiss the charges against their clients, arguing Lund violated professional ethics by allowing their clients to allegedly continue to lie from the witness stand.

Assistant Attorney General Melanie Tratnik, who is prosecuting the case against the deputies, argued Lund had acted appropriately, and Hickman declined, saying that would be up to the jury to decide.

Tratnik called Barham to the stand Monday and his now ex-girlfriend, Doris Resch, on Tuesday.

While their testimony diverged in some places, both said Montgomery and McNicol came inside the house that night, which is what Montgomery wrote in his report.

Mosley, who’d represented Barham, was up next. Tratnik asked him whether it was apparent the deputies were lying on the witness stand during the March 2010 hearing.

“It was to me,” the defense attorney said.

Detective sergeant Ben Benson, who was assigned to investigate the perjury allegations, was Tratnik’s last witness.

Benson testified, over the objection of Purtzer, that it would have been “absurd” for the deputies to allow a convicted felon to go into a house unescorted to retrieve a gun.

Tratnik played an audio recording of an interview Benson conducted with Montgomery in which the deputy appears – after explaining he didn’t mean to do anything wrong – to confess to lying on the stand.

Montgomery ultimately told the detective he thought his report was correct but he deferred to McNicol’s memory when the older deputy told him outside court before the pre-trial hearing in the Barham case that his report was incorrect.

“Looking back on it now, I think what’s written in the report is what happened,” Montgomery told Benson during a June 2010 interview.

“But you testified to something different?” Benson asked.

“Yes,” the deputy said.

Purtzer tried to paint his client’s actions as a mistake, not a lie.

“He never said he lied, did he?” Purtzer asked Benson during cross-examination.

“No, he didn’t,” the detective said.

Tratnik, during further questioning of Benson, said a lie’s a lie no matter what you call it.

“Now, without using the ‘L’ word or the ‘lie’ word or whatever you want to call it, is (what he said on the stand) a lie?” she asked Benson.

“Yes it is,” the detective sergeant replied.

Morey had Benson read portions of a transcript from a statement McNicol gave the detective sergeant. McNicol stuck to the account that he never went inside Barham’s house that night.

“This case is not worth my career,” McNicol said. “I told you what I did and that’s what I did.”

Tratnik later asked Benson why McNicol might lie about going into the house.

Benson testified the deputy told him he thought he might have needed a search warrant before entering the home to seize the gun. He didn’t have one.

Montgomery and McNicol will get to tell their side of the story directly to the jury beginning at 9 a.m. today.

Adam Lynn: 253-597-8644

adam.lynn@thenewstribune.com

blog.thenewstribune.com/crime