Appeals court wrestles with Pierce deputy’s claim of prosecutor falsehoods

For two years, retired Pierce County sheriff’s deputy Mike Ames has argued that Prosecutor Mark Lindquist’s office lied about him to brand him a liar. He wants a hearing to clear his name.

In response, prosecutors have said they’re just doing their duty, that Ames has no right to a name-clearing hearing, and that he should pay $118,000 in attorney fees for questioning their authority.

As of Sept. 4, the county has paid $288,530 to outside attorneys to defend the Ames case, according to records from the county’s risk management division.

Friday, the two sides clashed again before the state Court of Appeals in Tacoma: the latest twist in a long-running battle over credibility, the limits of prosecutorial discretion and the definition of a so-called “Brady” cop.

A small audience watched, including Ames’ white-haired mother, who sat on a bench behind her son.

“Dishonest, unfounded, unsupported accusations of dishonesty are not Brady material,” said Joan Mell, the attorney representing Ames.

Phil Talmadge, the outside attorney representing the county, called the suggestion that a prosecutor lied “incredibly offensive,” and added that there was no basis in law for the type of hearing Ames was seeking.

The three-judge panel made no decision; that will come later.

Friday’s hearing stems from an earlier clash in lower court that led to wins, losses and appeals on both sides. Last year, the county won its argument that Ames didn’t deserve a name-clearing hearing. Ames appealed that finding. The county lost its bid for $118,000 in attorney fees, and appealed that finding.

Money didn’t come up during Friday’s oral arguments. Instead, the appeals judges focused on the legal duties of prosecutors to disclose information to defense attorneys that could be relevant to the credibility of a law-enforcement witness.

That’s the so-called Brady label, a piece of legal shorthand viewed by law enforcement officers as a permanent stain on their reputations.

Brady material, named for a 1963 U.S. Supreme Court decision, is meant for defendants. It allows their attorneys to probe the credibility of arresting officers. The duty to disclose it is mandatory, according to prosecutors, and they have wide discretion when it comes to defining it.

The suit from Ames tests the limits of that discretion.

Typically, Brady material includes findings of misconduct from internal law enforcement investigations. The case involving Ames is different; the records used to pin him with the Brady label come from a disagreement with prosecutors.

It’s tied to a larger criminal case that ultimately led to a finding of prosecutorial vindictiveness and an active effort to recall Lindquist from office.

In 2011, Ames was the sheriff’s computer forensic analyst. He was assigned to review a computer cache of child pornography, including a photo used as the basis to charge Longbranch resident Lynn Dalsing with child molestation.

At the time, Ames reviewed the photo and sent an email to prosecutors, saying Dalsing couldn’t be identified in the image. A deputy prosecutor, Lori Kooiman, said Ames’ email would have to be disclosed to the defense, but it wasn’t.

Ultimately, Ames’ instinct was proved to be right; the photo didn’t depict Dalsing. Charges against her were dismissed, and she subsequently sued the county for false arrest.

After that, Ames’ email became the subject of a discovery battle.

In 2013, he filed a legal motion seeking the right to disclose it. The county opposed that motion and lost. (Ames recently won a pair of related legal victories tied to those efforts; appeals court judges awarded him about $15,000 in attorney fees, over the county’s objections.)

Ames filed a sworn declaration, saying he had delivered the key email string to Jim Richmond, a deputy prosecutor defending the county against Dalsing’s lawsuit. Ames added that Richmond told him the emails were “exculpatory.”

Richmond filed a counter-declaration, saying Ames “falsely” stated he turned over the emails, and that Richmond never described them as exculpatory.

Prosecutors later used Richmond’s declaration to label Ames as a Brady cop.

In response, Ames sued. He didn’t ask for money but for a name-clearing hearing and a chance to argue he told the truth. He also provided proof he’d sent Richmond the email string. The records appear in court files.

In 2014, almost a year after the dueling claims appeared, Richmond filed a new declaration in the Ames lawsuit, saying he had received the emails from Ames, just not on the exact date Ames mentioned in a previous declaration.

Justice Jill Johanson asked Mell about the nuances of Brady material. Citing past legal rulings, Johanson noted that such records sometimes include false statements from witnesses regarding law enforcement officers, but prosecutors still have to disclose them to the defense.

Mell replied that there was a difference between a false statement from a witness and a false statement from a prosecutor.

“We have very specific materials known in Richmond’s case now to be false, that are selectively being disseminated, presumably for for retaliatory reasons,” she said.

Justice Thomas Bjorgen ran a scenario by Talmadge — what if Ames was right? Would that mean prosecutors were overstepping their authority?

“I don’t think so,” Talmadge said. He added that Ames was bending legal process and using “the wrong vehicle” for his grievances. He suggested Ames should sue in federal court instead.

Mell, given the last word, said a name-clearing hearing would prevent the need for a federal suit.

“I don’t think it’s appropriate to force a detective to limit his remedy to seeking damages from the county when he’s seeking a preventive measure,” she said.

This story was originally published September 18, 2015 at 4:34 PM with the headline "Appeals court wrestles with Pierce deputy’s claim of prosecutor falsehoods."