Bitter fight over child porn evidence pits Pierce County prosecutors against a former detective

Staff writerJune 22, 2014 

“We can’t see her.”

Four little words, yet they carry enough cargo to fill a legal freight train.

Written in June 2011 by Pierce County sheriff’s deputy Mike Ames, the four words could be bottled and sold as lawyer bait.

So far, their implications have hooked more than 50 attorneys and four judges in three counties — all players in a vast courtroom drama.

The four words float through a messy criminal case, two contentious lawsuits and multiple appeals to the Washington State Supreme Court filed over the past three years.

“We can’t see her.”

For Pierce County prosecutors, the four words underscore a thorny child rape case and a grim two-front defense against follow-up lawsuits that accuse their office of malicious prosecution and dishonesty.

For Longbranch resident Lynn Dalsing, the four words represent the difference between innocence and guilt: the gap between freedom and a possible life sentence in prison for sex crimes she says she didn’t commit.

The four words refer to an ugly photo: one frame in an infamous series of child pornography images, familiar to those who collect them like baseball cards.

The photo depicts a woman and a young child. The child’s face is visible. The woman’s is not, according to sworn statements in court records.

For Ames, the recently retired sheriff’s deputy, the four words he wrote in 2011 represent his integrity: a promise to tell the truth, whether county prosecutors like it or not, whether he’s a difficult guy or not.

Three years later, Ames contends county prosecutor Mark Lindquist and his staff are trying to ruin his reputation and brand him as a dishonest cop to cover up their own mistakes, while tagging Ames with $118,000 in attorney fees for trying to clear his name.

“I serve the citizens of Pierce County, and I believe they deserve to be told the truth about how certain aspects of their criminal justice system is being run,” he said in a written statement.

Prosecutors say they’re fulfilling a duty they cannot shirk – a duty to disclose information about Ames’ credibility, whether he likes it or not.

“The plaintiff (Ames) and his attorney — who have a history of filing meritless complaints — made numerous false allegations against several people,” Lindquist said. “This is a rare remedy designed to discourage ill-conceived and irresponsible litigation.”

Is Ames a malcontent, a lying deputy, a disgruntled employee with an ax to grind?

If so, he has plenty of allies. Recently, 34 attorneys, including a host of veteran defense lawyers, a respected law professor and two former Pierce County chief deputy prosecutors, filed legal declarations in Ames’ defense.

The roiling dispute is the talk of the county courthouse and the local legal community.

But perhaps it’s easier to begin at the beginning.

Charged with child rape

On Sept. 8, 2010, following up on a complaint of child sex abuse, sheriff’s deputies arrested Michael Dalsing, 53, and his friend William Maes III, 59. Prosecutors charged both men with multiple counts of child rape and child molestation.

The reported victims included Dalsing’s granddaughter and his own daughter, then 7 — a product of his marriage with Lynn Dalsing, then 43.

The Dalsings lived in Longbranch; Maes lived in Kent.

Court records, including statements from the children, described sexual abuse by Michael Dalsing and Maes. Dalsing took pains to conceal his acts; charging papers noted that he and Maes orchestrated moments alone with the children, either at Maes’ place or at home when Lynn Dalsing was shopping or working.

Ultimately, both men pleaded guilty to the charges against them. They were convicted in 2011. Dalsing’s sentence: 25 years minimum. Maes: 15 years minimum. “Minimum,” because after the two men serve those terms, the state’s Indeterminate Sentence Review Board will decide whether they deserve release or more time, up to a life sentence.

Prosecutors didn’t charge Lynn Dalsing at first; she denied knowing what her husband was doing. She said she caught him taking photographs once and tried to stop him. She admitted knowing he had been convicted of a sex offense — indecent liberties — committed in 1983, 20 years before she married him.

Was she complicit? The initial police report from 2010 refers to an interview with her daughter, who reportedly said, “her mother knew what was going on and even saw it happen. She tried to stop it but it didn’t work.”

Not clear

The case against Michael Dalsing and Maes was a slam dunk – multiple child victims described the assaults. The mother’s potential culpability was harder to prove. The child victims said the abuse occurred when she wasn’t around.

Sheriff’s deputies spent two months looking for links. The investigation included a search of the Dalsings’ home computers: systems set up by Michael Dalsing, according to statements in court records.

The computers yielded thousands of images of child porn. That meant an unpleasant assignment for Ames: clicking through a virtual cesspool in a search for evidence.

“This case was the largest child pornography case I’ve worked in six years in computer forensics. The volume and content of the images that I had to go through was tedious and at times, very horrific.”

– Ames deposition, 2-14-13

The cache included various photos of children, and a few of Lynn Dalsing, nude and alone in a bedroom. Ames extracted about 40 images for closer examination: perhaps investigators could identify child victims.

One triggered the legal avalanche: a photo of a woman and an adolescent girl, later found to be part of a series unrelated to Dalsing.

Prosecutors and sheriff’s deputies didn’t know the origins of the photo at the time. It had a label dating to 2000 and a unique filename with a number. A handful of other photos Ames gathered carried the same metadata.

It wasn’t proof; digital photos could be altered. Ames, familiar with such cases, suspected the shot was part of a known series, but he hadn’t seen this one before.

The woman’s face wasn’t visible — only the contours of her body. She was heavyset; so was Lynn Dalsing. She had dark hair; so did Dalsing.

Ames found no correlation between the bedroom in the picture and the crime-scene photos taken during the investigation. Still, the evidence had to be checked.

Detective Debbie Heishman was the county’s lead investigator on the case.

Because of the arrests and the criminal investigation, Dalsing’s daughter was being held in protective custody. Heishman wanted to keep it that way, and said so in an email sent to Ames on Nov. 5, 2010.

“I have a dependency hearing coming up on this and want to make sure the little girl does not go back to Mom,” Heishman wrote.

Prosecutors were interested, too. If Dalsing was the woman in the photo, she could be criminally charged, just like her husband.

Heishman and Ames spoke on the phone about the photo, according to a sheriff’s report.

“He (Ames) also told me that there appears to be photographs of Lynn posing naked with a small female child on the bed. This new information confirmed what (the daughter) had disclosed about her mother knowing what her father Michael was doing to her.”

– Sheriff’s report filed by Heishman, 11-8-10

Here, the stories conflict. In a deposition conducted two years later, Ames gave a different account of the phone call with Heishman.

Question: Did you tell Detective Heishman that there appeared to be photographs of Lynn posing naked with a small naked female child on a bed?

Answer: No.

Q: Are you absolutely sure of that?

A: That’s not what I said to her.

Q: Did you say anything to her along that line? ...

A: I told her that I came across a series of photos that appeared to be a child pornography series. … And I said one of the photos has an obese woman on a bed with a naked child on top of her. I said, I can’t match any of the background in that picture to anything in the house. … I can’t see the person’s face. I can’t make a positive identification on anybody.

– Ames deposition, 2-14-13

Ames filed a supplemental report recounting his search of the seized computers. His report never identified Dalsing as the woman with the child in the crucial picture.

On Nov. 8, 2010, Heishman and Ames met to discuss the evidence. Heishman filed another report on Nov. 15, referring to the meeting with Ames. The new report flatly said Dalsing was the woman in the crucial photo.

“Lynn Dalsing also appears in several of the photos posing naked and alone and with a small female child.”

– Heishman report, 11-15-10

In his deposition, Ames told a different story of the meeting.

Question: Did you ever identify the woman in that photo as Lynn Dalsing?

Answer: No.

Q: Did you ever tell Detective Heishman that it was Lynn Dalsing?

A: Never.

– Ames deposition, 2-14-13

On Dec. 8, 2010, Heishman arrested Dalsing and briefly interviewed her. According to Heishman’s report, Dalsing said she remembered taking photos of herself, but not with her daughter.

Prosecutors charged Dalsing with child molestation and sexual exploitation of a minor. The photo was the key. Charging papers described it:

“One photograph depicted the defendant lying on her bed, naked on her back with a pre-pubescent girl … Det. Heishman has identified the bedroom in which the photos were taken to be the same room as the master bedroom of the residence that was searched.”

– Affidavit of probable cause, Pierce County Superior Court, 12-9-10

It wasn’t true. Dalsing wasn’t the woman in the picture. The picture wasn’t taken in her master bedroom.

She spent the next eight months in jail.

A long wait

Gary Clower, Dalsing’s defense attorney, demanded to see the evidence against his client. He waited seven months — until June 1, 2011 — before prosecutors provided a copy of the photo.

As soon as he received it, Clower visited his client in jail and showed it to her. Dalsing said the picture wasn’t her.

Clower visited Michael Dalsing, the confessed architect of the abuse, also in the jail after entering a guilty plea. Dalsing said the woman in the photo wasn’t his wife — the image came from a known series. He named it.

Clower immediately told prosecutors their key piece of evidence was bogus — a picture from a known series that didn’t depict his client or her child.

On the county side, a flurry of internal talk led to the four words: “We can’t see her.”

The photo was the backbone of the criminal case, but prosecutors wondered about amending the charges and adding a count of child porn possession. Perhaps Lynn Dalsing could be connected to the computers.

After a discussion with Deputy Prosecutor Lori Kooiman, Heishman emailed Ames on June 9, 2011.

“Pros (prosecutors) are wondering if you were able to tell if Lynn Dalsing had any type of account or files on the computer so we can charge her with the possession also?”

Ames replied 90 minutes later, in a crucial email that contained the four words.

“No, it appeared that he (Michael Dalsing) was the computer person. … Definitely no link to her and the child porn other than that one picture, but we can’t see her so no way to prove that either.”

Heishman shared the email with Kooiman, who replied to both deputies and asked for a meeting with Ames.

“I do have to provide your email to the defense. I do want to discuss some of your assertions.”

The back and forth had been quick but momentous. The sheriff’s lead (and only) computer forensics examiner had declared in a public record that the evidence against Lynn Dalsing was no good. It was a gift-wrapped present for the defense.

The prosecutor’s office officially knew it, and Kooiman had stated she would have to share Ames’ email with Dalsing’s defense attorney.

Except Kooiman didn’t. Clower never saw the email.

The next Monday — June 13, 2011 — Ames met with Kooiman and fellow Deputy Prosecutor Tim Lewis.

What was said at that meeting remains a topic of debate. Ames described the meeting in records referenced in court and in a recent interview.

The News Tribune sought comment from Kooiman for this story. The prosecutor’s office spoke for her, saying attorneys from the county’s civil division advised her not to comment because her actions are among the disputed issues in Dalsing’s ongoing civil case. In sworn declarations filed in a separate case, Kooiman and Lewis said Ames made “many false statements” about their meeting. They offered no specifics.

Ames, describing the 2011 meeting, said he asked about the disputed photo and whether it was the basis for the charges against Lynn Dalsing. If so, it was a mistake.

“I said, ‘That picture is not Lynn Dalsing,’ ” Ames recalled.

Ames said Kooiman told him the trial was coming up in a few weeks, and prosecutors needed his help.

“We don’t have anything on Lynn Dalsing, and we need you to find something,” he recalled Kooiman saying. (Lewis, interviewed by The News Tribune, said Kooiman made no such statement.)

All parties agree on one point: Ames initially refused to conduct a new search. He didn’t want to go back into the cesspool again, to go over the same trash he’d examined months earlier. He’d done a good investigation — it just didn’t reach the conclusion everyone hoped for.

Prosecutors insisted, Ames said. The original investigation had focused on Michael Dalsing and Maes — not Lynn Dalsing.

Ames was getting mad. Why hadn’t the prosecutors charged Dalsing with possession of child porn to begin with? He’d spent weeks sorting through filth for nothing, and now they wanted him to do it again.

Prosecutors told him to go through camera equipment and DVDs gathered during the original search and see if something turned up. They wanted him to write a new search warrant. They wanted him to consult with the National Center for Missing and Exploited Children about the crucial photo, to make absolutely sure.

Ames refused to consult the center — he thought his original investigation was good enough — but he finally agreed to examine the cameras and the DVDs. The results, submitted later, yielded nothing.

“It was the worst moment of my career,” Ames said of the meeting.

A month later, on July 12, 2011, Kooiman was back in court, arguing to keep Lynn Dalsing in jail and continue the investigation.

Clower, the defense attorney, was hot. He expected a dismissal. A few days earlier in open court, Lewis had said prosecutors couldn’t prove the charges against Lynn Dalsing. Now they were backpedaling.

Clower didn’t know about Ames’ email and the four words, but he had told prosecutors at the beginning of June that Dalsing wasn’t the woman in the crucial photo, that it was part of a known series. Six weeks had passed since then, and Dalsing was still in jail. He insisted on his client’s release and dismissal of the charges.

Kooiman told Superior Court Judge Ronald Culpepper it was still unclear whether Dalsing was the woman in the photo, according to a transcript of the hearing.

Kooiman said a relative of Dalsing’s had said the child in the photo was Dalsing’s daughter. She said investigators were still going through thousands of photos.

Clower said prosecutors were flailing, trying to hold his client while they searched for new evidence. It was too late for that.

He showed Culpepper the photo. The judge looked.

“Well, it is, certainly, difficult for me to see the adult in the photo since her face is, apparently, covered,” Culpepper said. “The child, the face is, you know, barely distinct.”

Clower moved in.

“They have had this for 10 months,” he said. “This woman has been locked up for eight months. I got the photograph a month ago.”

That was the ballgame. Culpepper denied Kooiman’s motion for a continuance, and ordered Dalsing’s release.

A day later, the National Center for Missing and Exploited Children responded to a query from county investigators, who recruited a Tacoma police detective to ask for help after Ames refused.

The answer came back within an hour. The center confirmed what Ames had suggested since the previous November: The woman in the photo wasn’t Lynn Dalsing. The image was part of a known series. The series had a name — the same name Ames found in the metadata.

Prosecutors promptly dismissed the charges against Dalsing without prejudice — a standard move that allowed them to refile charges later if they acquired new evidence.

The email from Ames with the four words never entered the record. Clower still didn’t know it existed. Kooiman, in a declaration filed three years later, said she told Clower verbally that county investigators couldn’t connect Lynn Dalsing to the computers. But the email Ames wrote — “we can’t see her” — did not surface.

The case appeared to be over. It wasn’t — not for Dalsing, or Ames or the county.

The next stage

On Jan. 5, 2012, Ames tangled himself in an unrelated matter, an internal dispute regarding overtime pay at the sheriff’s department. He filed a formal complaint, saying comp time was being traded for extra hours in violation of workplace rules. He’d logged 200 hours of OT, and he wasn’t getting paid for them.

To back his claim, Ames hired Fircrest attorney Joan Mell, who had clashed publicly with Lindquist in the past.

Ames was right, according to records; payroll policies were violated. The overtime complaint settled swiftly in his favor. He claimed money and got it: $12,000.

Meanwhile, in March 2012, Lynn Dalsing sued Pierce County for false arrest and malicious prosecution. Her attorney, Fred Diamondstone, sought records related to the original criminal investigation, including emails and internal correspondence between deputies and prosecutors. The slow process of civil discovery began.

Ames was still working as the sheriff’s lone computer forensics examiner. In late July 2012, he got a call from Mell.

The attorney wanted to make a police report in another case of possible child abuse. Before long, it would light a media firestorm.

The case involved a student at Kopachuck Middle School in Gig Harbor. In February 2012, the eighth-grade boy had been dragged around a classroom and taunted by other students while a teacher watched and occasionally participated. Students filmed the incident on their phones.

Mell represented the parents. They wanted a criminal investigation of what they believed to be bullying. She said she’d been trying to reach another detective to file the report, but hadn’t been able to connect and deliver video records of the incident.

Ames agreed to take a look. He watched the videos and took them into evidence. He wrote a summary and forwarded the report to another detective.

On Aug. 29, 2012, The News Tribune published a story that recounted the Kopachuck incident, including video excerpts. The story went viral: CNN, the “Today” show and international news outlets got interested. Emails flooded the sheriff’s office, demanding action.

Lindquist issued a statement saying the prosecutor’s office was looking into the case.

Behind the scenes, sheriff’s spokesman Ed Troyer, surfing the media wave, emailed Sheriff Paul Pastor and Undersheriff Eileen Bisson.

Troyer wondered about the genesis of the original report taken by Ames, and whether the prior relationship with Mell in the overtime dispute created an ethical problem:

“Didn’t Mell represent Ames in a matter against county? Is there a conflict here?”

Bisson replied quickly via email.

“She did. I’m not seeing the conflict if this is a county case. Mike won’t be the investigator, he just obtains the materials off the electronic items and it would be assigned to a detective.”

That settled the question for a few weeks, but another sheriff’s commander, Capt. Brent Bomkamp, raised it again on Sept. 25, 2012, referring to the link between Ames and Mell.

“It smells,” Bomkamp said in an email.

With approval from operations chief Rick Adamson, Bomkamp requested a search of Ames’ county email account to see if it included prior contacts with Mell.

The search, classified as high priority, took place Oct. 1, without Ames’ knowledge.

That same day he received his annual performance appraisal, which described him as “the foremost expert on forensic computer analysis on the department,” and “a trusted member of this department — his integrity is second to none.”

The email search found no correspondence between Ames and Mell, records state.

Bomkamp shared the results with Adamson, his commander. Adamson promptly sent an email to Lindquist, informing him of the results.

“Please don’t forward this,” Adamson wrote.

Did Lindquist play a role in the search of Ames’ email? According to records obtained by The News Tribune, Adamson said he informed Lindquist because the two knew each other socially, and Adamson had mentioned the Ames-Mell connection to Lindquist in an earlier conversation.

According to the same records, Lindquist said he had no input into the requested search and did not direct it. When asked by The News Tribune, he said the same thing.

Ames remained unaware. On Oct. 11, a co-worker tipped him — Ames faced a misconduct investigation for filing a police report in the Kopachuck case.

Ames was alarmed, but he had other things to think about. The lawsuit filed by Lynn Dalsing was gathering steam, and he was one of the witnesses. That meant trial prep. He had to meet with deputy prosecutors to discuss an upcoming deposition.

Preparing for trial

Records indicate the prep meeting took place Oct. 16, 2012. Ames met with deputy prosecutor Jim Richmond and another prosecutor.

Arguments about the meeting and its aftermath rage to this day. Generally, the parties agree that attorneys and Ames discussed deposition preparation for Dalsing’s lawsuit.

The News Tribune sought comment from Richmond regarding the meeting and other matters. The prosecutor’s office intervened, saying attorneys from the county’s civil division advised Richmond not to comment because his actions are among the disputed issues in Dalsing’s civil case.

Ames figured his email saying he couldn’t identify Lynn Dalsing in the photo — and the four words, “we can’t see her,” had long since been disclosed in the old criminal case. Kooiman’s reply email had said she would have to disclose it.

Ames expected the topic to come up in the prep meeting. It didn’t. He left the meeting uneasy. According to a sworn statement he later filed in the civil case, he called Richmond after the meeting to discuss the email and the four words, believing they were important.

According to Ames, Richmond asked for a copy of the email string. Ames sent it on Oct. 18, 2012. A record of the email exchange appears in court files. Ames says Richmond called back, and said the email would have to be disclosed to Dalsing’s attorney. Richmond, in a separate sworn statement, denied he said anything of the kind.

Either way, the email with the four words wasn’t disclosed.

No charges

In November 2012, sheriff’s deputies and the prosecutor’s office reached a decision on the Kopachuck incident. There would be no criminal charges against the teacher seen on the video.

The case had problems: The incident dated to February 2012, but hadn’t been reported to law enforcement for six months. The report came from Mell, who had a clear interest in a possible lawsuit if criminal charges were filed.

Lindquist explained the rationale in a news release:

“To complicate matters, the civil attorney reported the matter to a PCSD (Pierce County Sheriff’s Department) detective who had been represented by that same civil attorney on an unrelated matter.”

Mell fired off a letter to Lindquist, accusing him of downplaying the incident for improper reasons. Ames was equally annoyed. He soon learned more details of the search of his email and that the results were shared with Lindquist.

He filed a furious complaint. He accused the sheriff and the prosecutor of retaliating against him because of his earlier complaint regarding overtime. He accused them of conspiring to dismiss the Kopachuck incident for bad-faith reasons. He wanted a criminal investigation:

“That child and his family turned to the criminal justice system of Pierce County seeking ‘justice’ for their son. … Instead I believe they were bullied by the system because certain individuals had personal vendettas against the family’s attorney and the detective who took the initial complaint.”

– Excerpt of Ames complaint

The sheriff’s office sent Ames’ complaint through standard channels and assigned it to an outside investigator. Meanwhile, Ames arrived for his deposition in Dalsing’s civil suit on Feb. 14, 2013.

Don’t answer

Richmond, the lead prosecutor in the civil suit, had prepped Ames before the deposition: if you’re told not to answer a question, don’t answer it.

It happened a lot. Dalsing’s attorney, Fred Diamondstone, was zeroing in on Ames’ forensic analysis of the Dalsings’ computers and the crucial photo that had been used as the basis for charges of child molestation.

The deposition transcript shows Richmond repeatedly instructed Ames not to answer questions about conversations and correspondence with prosecutors.

Ames realized his email with the four words had never been disclosed: not to the defense in the criminal case, nor now in the civil case.

He was a named party in a lawsuit alleging false arrest. He’d written the four words that led to dismissal of the charges, but the county wouldn’t let him say so.

Thinking of his best interests, he hired Mell — again.

Diamondstone, now hot on the trail of what appeared to be vital evidence in his client’s lawsuit, pestered the county for Ames’ emails.

The county resisted. Prosecutors argued the emails were work product, protected by attorney-client privilege.

In March, Ames threw a wrench into the county’s strategy. He petitioned the court for permission to disclose his email and the four words.

King County Superior Court Judge Beth Andrus was presiding over the increasingly complicated Dalsing civil case and considering Ames’ request to disclose his emails.

Prosecutors argued against it, saying the criminal investigation against Dalsing could still be reopened.

Over the county’s objections, Andrus ruled in the deputy’s favor: the four words — “we can’t see her” — and the entire email chain would be disclosed, and they didn’t have to be sealed.

“All of the documents submitted to the Court by Detective Michael Ames are discoverable.”

That wasn’t all. The ruling was tough: Andrus opened the door to a trove of material. Additional records were fair game, and deputies and prosecutors could be questioned about their actions in the criminal case.

By this time, Gary Clower, who had represented Lynn Dalsing in the original criminal case, had seen the Ames email and the four words for the first time. He filed a declaration saying prosecutors had failed to provide it to him two years earlier — against the best interests of Dalsing.

Forced to play defense, county attorneys argued for delay — a stay of the judge’s discovery order.

They said they were still investigating possible criminal charges against Dalsing. They were seeking help from the Snohomish County prosecutor’s office to avoid conflicts of interest and waiting for a possible charging decision. New information was arriving. One of the victims in the original case — Lynn Dalsing’s daughter — might be interviewed again.

Andrus agreed to hear arguments for a stay, but she was perplexed. At a hearing on May 8, 2013, she questioned shifting statements regarding the criminal case from Deputy County Prosecutor Jared Ausserer.

“I feel as if I’m getting different information with each new pleading. And that’s a concern to me. … Mr. Ausserer appears to have made certain representations in prior declarations that now seem inconsistent with what he’s saying in his current declaration, and you know from a lawyer’s perspective that when you have two inconsistent declarations, it does reflect on someone’s credibility. … Is there really a criminal investigation going on such that continuing the stay of discovery makes imminent sense, or is there something else going on behind the scenes that would explain why I’m getting such different messages from Pierce County’s criminal side? That’s really what my biggest concern is.”

– Superior Court Judge Beth Andrus, transcript of hearing, 5-8-13

Andrus was unhappy, but she granted the county’s motion for a 90-day stay of her discovery order. The county had gained a little breathing room. Prosecutors used it to appeal her discovery order to the Washington State Court of Appeals.

While the Dalsing civil case dragged on, the complaint Ames had filed with the sheriff’s office regarding the search of his emails concluded. An outside investigator, Jeffrey Coopersmith, found the county did nothing wrong in searching Ames’ emails. Accusations of systemic retaliation and conspiracy were unfounded.

The investigator also concluded Ames did nothing wrong when he took the police report from Mell regarding the Kopachuck incident.

No reason to re-interview

Fred Diamondstone, representing Lynn Dalsing in the civil case, wanted to check the legitimacy of Pierce County’s claim of a continuing criminal investigation and a possible charging decision from Snohomish County prosecutors.

A Snohomish County deputy prosecutor provided the answer. The office had reviewed the case — but not for a new charging decision. Instead, the office concluded no new information justified interviewing Dalsing’s daughter again.

Court records and police reports from this period indicate Pierce County prosecutors sought assistance from Lakewood police to continue the criminal investigation against Lynn Dalsing and did not seek further assistance from Snohomish County.

Deputy Prosecutor Jared Ausserer had taken charge of the criminal case. In a recent interview with The News Tribune, he explained why the county kept pushing.

“We’re not going to just not investigate this because they’re saying no new information,” he said. “At some point somebody’s got to make a decision on this case – so instead of playing games with different jurisdictions, we moved forward.”

Asked who made the decision to proceed, Ausserer said, “I assume Mark (Lindquist).”

Asked by The News Tribune, Lindquist said he approved the continuing investigation based on recommendations from Ausserer and other prosecutors.

“Our deputy prosecutors in the criminal division were not motivated by anything other than a desire to protect the community and hold both of the Dalsings accountable,” he said. “Our prosecutors were doing their jobs and playing by the rules. We shouldn’t forget about the young victims in this case who were exploited, molested and raped.”

Paying the bills

Ames wanted Pierce County to cover his legal bills in the Dalsing lawsuit.

Total: $4,554. Along with it, he filed a declaration describing his October 2012 discussion with Richmond about the emails.

Ames said he delivered the emails and that Richmond responded.

“Mr. Richmond told me that the email I turned over to him from Lori Kooiman in October 2012 was ‘exculpatory’ regarding my involvement in this case. He also told me that it would clear me of any wrongdoing in the case and he would see to it that it was turned over as part of discovery.”

– Ames declaration, 6-13-13

Many moments in the three-year controversy surrounding Ames and the prosecutor’s office could be labeled as firestarters, but this declaration ranked near the top.

Richmond filed a declaration of his own a month later, accusing Ames of lying to the court.

“Mr. Ames falsely states he turned over to me County emails that would ‘clear his name and his department.’ Mr. Ames did not deliver or discuss emails at that meeting, even though he did later provide me other related records.”

– Richmond declaration, 7-17-13

Richmond added that he’d never told Ames the emails were exculpatory or that they would have to be disclosed.

The two statements directly conflicted. Ames said he gave the emails to Richmond. Richmond said he didn’t.

Ames filed a heated reply that gave more detail. He described his October 2012 meeting with Richmond and said he’d spoken to him on the phone afterwards about the emails. Richmond had asked for copies, and Ames had delivered them.

“It was after that meeting that I contacted Mr. Richmond and discussed the emails because they had not come up in that meeting. I expressed to Mr. Richmond the importance of the email from Lori Kooiman, and he asked me to email him a copy of it. I emailed him the copy, and he called me after receiving it. Mr. Richmond did advise me it was exculpatory and needed to be disclosed during discovery. … those conversations … took place solely over the phone between Mr. Richmond and me.”

– Ames declaration, 7-19-13

Court records obtained by The News Tribune include copies of the email Ames delivered to Richmond — the crucial email from 2011 that included the four words. The date of delivery to Richmond was Oct. 18, 2012.

Judge Andrus, refereeing the fight between the county and the deputy, ruled in favor of Ames. The deputy was entitled to his attorney fees.

“Det. Ames sought relief only after he was improperly instructed by Pierce County’s counsel not to answer reasonable deposition questions and not to produce legally discoverable documents.”

– Andrus ruling, 7-22-13

The county appealed, seeking a reversal of the attorney fee ruling. Ames and Dalsing were racking up wins — but the battle wasn’t over.

Still working

While the lawsuits dragged on, Ames continued with his regular duties as a forensics examiner. That included testifying as an expert witness in unrelated criminal cases.

Under the rules of criminal discovery, defendants in criminal cases are entitled to evidence held by prosecutors that could be favorable to the defense. Prosecutors have an affirmative, non-negotiable duty to disclose such evidence. It’s known as “Brady” material, and it covers a wide range of evidence – anything from facts that might support a defendant’s innocence to information regarding the credibility of witnesses.

The Brady label stems from a famous 1963 U.S. Supreme Court decision called Brady v. Maryland. It holds that prosecutors must disclose “exculpatory” information to the defense. A related 1972 ruling, Giglio v. United States, also requires disclosure of “potential impeachment” information about witnesses.

For cops, the Brady label refers to their actions on the job, and any evidence that could be used by defense attorneys to undercut their credibility. In law enforcement circles, a “Brady cop” means a lying cop. A typical example of Brady material would include findings of misconduct following an internal law enforcement investigation.

In September 2013, as Ames prepared to testify in a criminal case, he received a note from the prosecutor’s office. Framed in legalese, the meaning was obvious: The prosecutor was going to label Ames a Brady cop.

The basis was twofold. The first element: Ames’ declarations in the Dalsing civil case — his statements saying he had provided his email with the four words to Richmond, and the reply declaration from Richmond, which challenged Ames’ version of events.

The second element was the internal complaint Ames had filed with the prosecutor’s office after he learned his email account had been searched without his knowledge in the midst of the Kopachuck investigation.

Deputy prosecutor Steve Penner handles Brady material for the office in consultation with a small team of colleagues. He said the law enforcement perception of the Brady label as a scarlet letter that denotes a liar is mistaken; Brady material can include unfounded allegations. It’s a matter of making sure defense attorneys can’t accuse prosecutors of hiding evidence.

Penner said the decision to disclose the Ames material was a collective recommendation sent to Lindquist, who approved it. The idea was erring on the side of disclosure, he said – dueling declarations between a sheriff’s deputy and a prosecutor could become fodder in future cases if defense attorneys asked for it.

To Ames, it made no sense.

He had provided the emails to Richmond. Records proved it. The complaint he filed in the Kopachuck matter concluded the county did nothing wrong when it searched his email — but it also found Ames did nothing wrong when he took a police report of a possible child abuse incident.

As Ames saw it, the prosecutor’s office was using those facts to label Ames a liar.

On Oct. 2, 2013, Ames sued the county. He didn’t ask for money. He sought a writ of prohibition — a legal order preventing the county from sticking him with the Brady label. He wanted a name-clearing hearing to argue for his reputation.

“As a police officer I have taken an oath to uphold the law, and to be truthful and honest even when doing so may conflict with the wishes of the Prosecuting Attorney. The Dalsing case is one such example. …

“Being labeled as a Brady cop comes with a stigmatization for an officer that can be a death sentence to his or her career. The stigma that comes with being labeled a Brady cop is dishonesty, untruthfulness and lack of credibility, and as a result an officer’s testimony on the stand becomes worthless.”

– Ames declaration, 12-12-13

To avoid conflicts, the case was handed to Kevin Hull, a visiting judge from Kitsap County Superior Court. The county hired outside attorneys: Seattle attorney Mike Patterson and former state Supreme Court Justice Phil Talmadge.

The all-star team swiftly moved to dismiss Ames’ case. The duty to disclose Brady material was absolute: The point was not the truth – the information simply had to be disclosed to the defense.

Ames and Mell argued that prosecutors were abusing their discretion. They had no duty to disclose false information.

In February, Hull ruled in the county’s favor. The prosecutor’s duty to disclose trumped, he decided.

Ames and Mell lost. They appealed to the state Supreme Court.

The county followed up with a fastball and moved for attorney fees — more than $118,000 incurred by Patterson and Talmadge.

The argument: Ames knew or should have known he was going to lose. That meant he’d filed a frivolous claim. For that, he should pay.

Dalsing charged

Pierce County was winning in the Ames case, but losing in another arena. Fred Diamondstone, Dalsing’s attorney in the civil case, had been seeking county records for more than a year. On March 25, rulings from the state Court of Appeals denied the county’s requests for further discovery delays.

Three days after those rulings, Pierce County charged Lynn Dalsing with two counts of child rape.

In 2010, based on the photo, prosecutors had charged her with two crimes: child molestation and sexual exploitation of a minor, one count each.

Three years later, they stacked eight charges against her. Child rape: two counts. Child molestation: three counts. Sexual exploitation of a minor: three counts. The child rape charge alone carried a possible sentence of life in prison.

In the revised charges, prosecutors described Dalsing as an accomplice, saying she knew of her husband’s abuse and failed to stop it or report it.

The charges hinged on an incident described in records: Dalsing walked in on her husband and saw him taking pictures of his daughter and another child. She reportedly walked out without stopping him.

The account came from Dalsing’s 7-year-old daughter, who reportedly told detectives she believed her mother did not act “because she was afraid.”

The incident is described in other police reports with slightly different details:

• Dalsing said she confronted her husband and told him to stop what he was doing.

• Michael Dalsing said his wife caught him taking pictures; he said she told him to stop and threatened to call police.

Prosecutors also relied on statements from Maes, the co-defendant in the original criminal case. Maes told stories he said he’d heard from Michael Dalsing: that Lynn had participated in abuse of the daughter, and that he’d seen an obscene picture of Lynn with her child. No such photo appears in evidence records. Maes also said he knew Lynn Dalsing was the woman in the picture because he recognized her vagina.

The charging decision came from Ausserer, the deputy prosecutor who had taken charge of the criminal case.

“(Dalsing) knows that she’s not allowed to have minors in contact with her husband, who’s a sex offender,” he said. “She knew it was happening, and facilitated it. I think anybody who reads the probable cause statement can see that.”

Dalsing’s trial is set for Oct. 23. Defense attorney Donald Winskill is representing her. She’s pleading not guilty.

“We certainly do not agree with the charges,” Winskill said. “I can tell you she (Dalsing) adamantly denies this stuff. I do not see criminal liability here. I just don’t see it. I don’t see any evidence that she was an accomplice in anything that her husband or this other individual did.”

Ames loses

Shortly after filing new charges against Dalsing, the county won a victory against Ames. Visiting Judge Kevin Hull ruled the county was entitled to attorney fees for defending itself against the deputy — the total exceeded $118,000.

The decision sent a mild tremor through the local legal community. Losing the legal argument was one thing — part of the rough-and-tumble of court battles. Seeking sanctions and fees in such cases was a rare move, and fee awards were rarer.

Lindquist acknowledges the worries of defense attorneys, but he said the decision to seek fees, which he authorized, was appropriate.

In his suit, Ames hadn’t asked for money — only a writ and a hearing to clear his name. He had argued from the standpoint of a whistle-blower, seeking a chance to explain his actions.

He wrote the email with the four words and said so. He shared it with county attorneys and said so. A judge had ordered him to disclose the correspondence. He did it.

A prosecutor, Richmond, had accused Ames of lying about sharing the emails. Records established that Ames, in fact, had shared them.

The hunch Ames expressed in the email had been dead accurate. Lynn Dalsing wasn’t the woman in the photo cited in the original criminal charges. Federal authorities had confirmed it.

Prosecutors were touting his actions as evidence of dishonesty. His efforts to vindicate himself were being labeled as frivolous.

From Ames’ standpoint, prosecutors were lying about him in order to call him a liar. He asked for reconsideration of the fee ruling.

The case was already unusual. The next step made it more so.

More than 30 lawyers filed declarations in support of Ames. As one, they argued against the monetary sanctions, saying they would have a chilling effect on the court system. In effect, a whistle-blower being sanctioned and fined for seeking relief in court would set a dangerous precedent.

Many of the lawyers were veteran defense attorneys — potential beneficiaries of Brady cop information. Two attorneys — Mary Robnett and Barbara Corey — were former deputy prosecutors who had led the prosecutor’s criminal division. Corey had sued the county in 2008 for wrongful termination from the prosecutor’s office and won a $3 million judgment.

Corey’s declaration cited her past experience as a prosecutor (and more recently as a defense attorney.) She said she’d never seen a whistle-blower report used as Brady evidence against a cop. She said the declarations filed by Ames and Richmond in the Dalsing case provided “objective evidence that Det. Ames is telling the truth and Jim Richmond is not.”

Corey added that she’d known Ames for many years and always found him credible and cooperative. She described a change in climate and tone at the prosecutor’s office since Lindquist had taken charge in 2010. Tensions had grown between the sheriff’s office and the prosecutor’s office:

“Mr. Lindquist reportedly is more directly involved in controlling the actions of the sheriff’s detectives than any prosecutor before him. Detectives within the sheriff’s department personally have approached me to discussed [sic] their perceptions, displeasure and concern about this control. It is [sic] seems that Det. Ames is a recipient of disfavor with the prosecutor’s office and must have upset the Prosecuting Attorney by exposing facts unfavorable to him and that office.”

– Corey declaration, 4-14-14

Robnett left the prosecutor’s office in 2012. She now works for the state attorney general’s office. She also defended Ames.

“During my years of working with the large, multi-disciplinary team, Detective Ames enjoyed a reputation as a reliable, hard-working and ethical detective. … He has sought an appropriate remedy to restore his good name, and has done so by requesting a name clearing hearing in a declaratory judgment action. Although I believe his reputation and career have been damaged by the prosecutor’s disclosure, this is not a case where Detective Ames is requesting monetary damages from Pierce County.”

– Robnett declaration, 5-1-14

Another key declaration came from Seattle University law professor John Strait, a recognized expert on legal ethics. Strait said Ames’ effort to seek a hearing to clear his name created “a new litigation problem” that courts had not addressed — but that didn’t make it frivolous, and it didn’t justify sanctions and attorney fees.

“A Brady cop is entitled to some forum in which to resolve the truth or falsity of the allegations which lead to such a declaration,” Strait wrote.

In response, prosecutors again cited their absolute duty to disclose Brady material, also known as potential impeachment evidence, or PIE. Deputy Prosecutor Stephen Penner, who handles Brady disclosures for the prosecutor’s office, filed a declaration explaining the duty. He cited Ames’ statements in the Dalsing civil case and Ames’ complaint tied to the Kopachuck matter.

Penner’s declaration noted that providing Brady material didn’t necessarily suggest prosecutors were labeling Ames as dishonest. According to the prosecutor’s office’s adopted PIE policy, the truth didn’t matter:

“The PCPAO (Pierce County Prosecuting Attorney’s Office) PIE policy specifically states that PIE disclosure may be required ‘regardless of whether the PCPAO believes the allegations in the PIE are true, and may be required in cases where the PCPAO believes the allegations are not true.”

– Penner declaration, 5-12-14

Richmond, the deputy prosecutor who had clashed with Ames, also filed a declaration.

It was Richmond’s July 2013 declaration (“Mr. Ames falsely states he turned over to me County emails…”) that became part of the basis for labeling Ames as a Brady cop.

For the first time, Richmond acknowledged in a sworn statement that Ames had given him the crucial emails and the four words — just not on the exact day of their meeting on Oct. 16, 2012.

“Ames forwarded the June 9, 2011 email exchange to me on Oct. 18, 2012, nearly a week after our meeting. … I have never denied receiving the June 9, 2011 email. Instead, I stated that it was not given to me at that meeting.”

– Richmond declaration, 5-14-14

Asked about Richmond’s actions and declarations, Lindquist referred questions to Deputy Prosecutor Dan Hamilton, who leads one of the county’s civil teams.

Hamilton said Richmond’s declarations in response to Ames were appropriate.

“The relevant issue was not did (Richmond) receive the emails,” Hamilton said. “The only thing that was relevant at the time was whether Jim had made a promise to disclose the emails. He did not. We only put down in our declaration things that are relevant.”

Kooiman, the prosecutor in the initial criminal case against Dalsing, also filed a sworn declaration. It was carefully worded. She said that in 2011 she received Ames’ email that contained the four words. She did not say she gave the email to Dalsing’s defense attorney, Gary Clower. She said she spoke to Clower on the phone and in person before the original criminal case was dismissed and told him Ames couldn’t connect Dalsing to the computers.

The debate hit full boil on May 19, when the county faced Ames in Judge Hull’s courtroom in Port Orchard.

The basic question: Would Hull reconsider his order of sanctions and attorney fees?

Talmadge argued for the county. He was soft-spoken and surgical. He cited procedure and precedent.

The declarations filed by the 34 attorneys were flawed, he said. The first six were untimely. The other 28 were improperly presented. Many were generic: the same verbiage with slightly revised biographical details from individual attorneys.

Above all, Talmadge said, the declarations were irrelevant. No procedure in law existed that would allow a deputy’s complaint to overrule a prosecutor’s duty to disclose Brady material.

Because that procedure didn’t exist, Ames was arguing in bad faith by definition, Talmadge argued. Ames was cherry-picking; he wanted new law, but he said current law allowed a remedy. He wanted a hearing to clear his name, but he couldn’t argue that any rules had been violated.

“Counsel’s gotta pick which of the arguments she chooses to make,” Talmadge said, referring to Mell.

Mell argued for Ames. So did Brett Purtzer, a veteran defense attorney who had signed one of the 34 declarations.

Purtzer said the prosecutor’s office couldn’t use the Brady process to brand Ames unfairly. Some remedy had to be available. Sanctions and attorney fees were unreasonable.

“The disclosure labels (Ames) as something that he’s not,” Purtzer said. “You will not find a case that says you can make false information and declare it as Brady.”

Hull mulled. This case was headed for an appeal, no matter how he ruled. The attorneys and the judge talked of it openly throughout the hearing.

Hull sided with Ames. The declarations were in. He was willing to reconsider his ruling for fees, and he wanted to hear more argument. He would accept briefs from both sides. If this was about creating new law, he wanted to see the rationale.

Scorecard

The threads of the three cases remain intertwined. All are still active, with more hearings ahead.

The county and Ames are scheduled to meet again July 10 in Hull’s courtroom. The judge could preserve his ruling, reverse it or modify it. An appeal is inevitable, regardless of outcome.

The Ames case continues to reverberate at the county courthouse. Team leaders at the prosecutor’s office have met with their members and shared copies of the declarations filed on behalf of Ames.

Sources tell The News Tribune that team leaders have provided the declarations to make it clear which defense attorneys filed them. Team leaders reportedly said those attorneys should be treated no differently than any other lawyers involved in local cases.

Lindquist said he approved a recommendation from his chief of staff, Dawn Farina, to disseminate the declarations. The idea was open communication.

Lawyers who filed declarations on Ames’ behalf also received letters from Lindquist’s office. The letters, penned by Deputy Prosecutor John Sheeran, reiterate the county’s position in the Ames case and suggest that lawyers who filed declarations might be operating with incomplete information. Some attorneys interviewed by The News Tribune saw the letters as veiled threats. Lindquist said his office had no motive beyond transparency.

The next hearing in Dalsing’s criminal case is set for Aug. 29. It’s an omnibus hearing, a catch-all, catch-up moment, followed by a placeholder trial date of Oct. 23. The case will be entering its fifth year.

Dalsing’s false-arrest suit against the county is active, in something of a legal holding pattern. Both sides continue to argue over disclosure of records, and the debate has been sent to the state Supreme Court for consideration.

Ames retires

On Feb. 14, Mike Ames retired from the sheriff’s office after 26 years of service. He sent a letter to Sheriff Paul Pastor. It was seven pages long, accusatory, a bullet-point list of grievances.

“The working conditions for me have become intolerably hostile to my good name, reputation and credibility,” Ames wrote.

On May 19, the sheriff’s office posted a job opening for a computer crimes investigator.

The job description is boilerplate. The detective will investigate computer crimes and analyze electronic media.

“Success in this position is dependent upon an individual’s ability to learn the skills necessary for the position and to interact well with varied other units within Pierce County, including but not limited to the Prosecutor’s office, other police agencies, and civilian experts.”

It’s primarily a day shift job, according to the position notice – but it requires night and weekend work.

Sean Robinson: 253-597-8486 sean.robinson@thenewstribune.com @seanrobinsonTNT

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