A judge has dismissed all 14 counts of possession of child pornography against former Capital Playhouse interim artistic director Troy Fisher, ruling that an Olympia police detective's search of Fisher's computer after he went missing in July was illegal.
Thurston County Superior Court Judge Christine Schaller dismissed the charges against Fisher during a court hearing Monday morning. During the hearing, a Pierce County special prosecutor declined to offer rebuttal argument to Fisher's attorneys' motion that the warrantless search of Fisher's computer was illegal.
"I don't believe there is any exception to the warrant requirement in this case," Pierce County Special Prosecutor Scott Peters said during Monday's court hearing.
Olympia police seized Fisher's home computer after he went missing on July 23. An Olympia police detective made keystrokes to search the computer's hard drive, and, according to court papers, found suspected images of child pornography there about five hours after she had been told he was found safe the morning of July 25, Schaller said in court.
Schaller said in court that the Olympia Police Department's actions in conducting the illegal search are "concerning." She dismissed the case, ruling that all of the evidence seized by police is inadmissible in court, due to the warrantless search.
Peters has stated in court filings that he believed the Olympia Police Department acted in good faith when it seized Fisher's computer from his home on July 24, the day after he was reported missing from the home by Fisher's niece and nephew, who were staying there. Peters' court filing stated that the police were acting under a "community caretaker" function in seizing the computer in an effort to locate Fisher by reading his e-mails.
One of Fisher's attorneys, Todd Maybrown, said there is no evidence to support that Olympia police were acting in good faith when they seized Fisher's computer. He said he could find no other case in the entire country where prosecutors attempted to use the "community caretaker" argument to justify an illegal search.
"The state has no evidence to move forward," Maybrown said.
Fisher was found safe about 2 a.m. on July 25, after he called 911 from a pay phone outside a grocery store on Olympia's west side. About 11 hours after Fisher was located, and about five hours after Olympia Det. Rebecca Fayette had been told Fisher was found safe, Fayette "went though a series of steps" to look at images on Fisher's hard drive, and found alleged images of child pornography, Schaller said in court. The images were later determined to be images of boys between 10 and 13-years-old engaged in sexually explicit conduct, according to court papers.
Schaller pointed out that after Fayette had been told that Fisher was reported found safe, she merely had to make a single keystroke to stop the forensic search of Fisher's computer, but she did not do so.
Schaller did not rule on the issue of whether Olympia police acted in a "community caretaker" role to ensure Fisher's safety when it seized Fisher's computer - she said she didn't need to, because the search of Fisher's computer was warrantless and illegal under the U.S. Constitution and the Washington Constitution.
She also ruled that evidence from subsequent searches of Fisher's work computers at the playhouse also were inadmissible, due to the "fruit of the poisonous tree doctrine," that all evidence obtained in the case stemmed from the initial, illegal warrantless search.
Fisher, 52, was mobbed by supporters in a packed courtroom after the judge dismissed the case with prejudice, meaning that it cannot be refiled.
"These people saved my life," Fisher said of his supporters during an interview at the courthouse. "...They've reminded me of who I am and who I am is an innocent man."
Fisher said he looks forward to reclaiming his life and his good name. He called the entire investigation after he went missing a "witch-hunt."
"My civil liberties were violated," he said.
Fisher said he hasn't yet considered whether he will file a lawsuit against police for the warrantless search of his computer.
Fisher said that he has dedicated his life to children, and there has never been an allegation that he has ever acted inappropriately around children. Fisher added that he has never knowingly accessed or possessed child pornography from a computer.
The Playhouse, on Fourth Avenue in downtown Olympia, puts on plays involving children and teens and runs children's theater and musical workshops.
Maybrown said that even if the case had been allowed to go to trial, Fisher would have been found innocent because there is no evidence that Fisher possessed child pornography.
Fisher has been free as he awaited the disposition of his charges. Prior to Monday's hearing, a number of his supporters successfully petitioned the court to allow Fisher to give their children voice lessons so he could continue to work. "I'm already teaching again," Fisher said Monday.
Fisher said it's still a medical mystery as to what caused him to go missing from his home July 23. He was dehydrated and exhausted when he called 911 from a pay phone two days later, but he was otherwise unharmed. Fisher said he was working 100 hour weeks at the Capital Playhouse for meager pay when he went missing, and that might have contributed to his health at that time.
Maybrown said Olympia police owe Fisher "more than an apology."
"Police never take responsibility when they're the ones who have made a mistake," he said.
The Pierce County special prosecutor was appointed to Fisher's case by the Thurston County Prosecuting Attorney Jon Tunheim in order to avoid the appearance of a conflict of interest. Tunheim's wife is on the board at the Capital Playhouse, and their children have participated in programs there.
Jeremy Pawloski: 360-754-5445 firstname.lastname@example.org