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Prosecutor Lindquist faces a pair of legal losses on eve of re-election campaign

Pierce County Prosecutor Mark Lindquist
Pierce County Prosecutor Mark Lindquist The News Tribune

It’s not quite Christmas yet, but Pierce County Prosecutor Mark Lindquist is facing a pair of fresh rulings that represent the legal equivalent of coal in his stocking.

The first item, a Dec. 6 decision from the Washington State Bar Association Disciplinary Board, orders a public hearing on alleged misconduct by Lindquist during a widely publicized murder trial in 2016.

The second, a ruling issued Thursday by Thurston County Superior Court Judge Chris Lanese, orders Lindquist to turn over 19 text messages for a private, in-camera review to determine whether they qualify as public records.

Both decisions are setbacks for Lindquist. The potential outcomes could affect his license to practice law and expose taxpayers to fines for nondisclosure of records. The proceedings will play out in 2018, as Lindquist mounts his campaign for re-election.

Both decisions are setbacks for Lindquist. The potential outcomes could affect his license to practice law and expose taxpayers to fines for nondisclosure of records. The proceedings will play out in 2018, as Lindquist mounts his campaign for re-election.

In the bar association matter, Lindquist’s attorney, Steven Fogg, had argued for dismissal of the complaint and at most, an advisory letter.

Instead, the bar association’s three-member review committee voted unanimously to order the hearing, which will examine whether Lindquist violated rules of professional conduct when he chose to appear on the Nancy Grace television show and made comments about a defendant’s potential guilt in the midst of the trial.

TEXT MESSAGE CASE DEVELOPMENTS

In the long-running text-message case, outside attorneys hired by Pierce County argued in various briefs that the messages weren’t public records, and that the judge had no authority to conduct an in-camera review.

In his latest ruling, Judge Lanese took a different view of his authority.

“The Defendants argue that the Court is not permitted to conduct an in camera review of records to determine whether the text messages at issue are public records,” Lanese wrote. “This argument is contrary to the plain language of both the Public Records Act and case law.”

The text-message case dates to 2012. To date, the county has paid $623,441 to outside attorneys defending it, according to the latest figures from the county’s risk management division.

The case pits former sheriff’s Deputy Glenda Nissen against Lindquist and the county.

Nissen contends Lindquist tried to sabotage her career after she publicly opposed his campaign for office in 2010. She contends the messages from his private phone will prove it, and that they qualify as public records. Lindquist opposes disclosure, arguing his messages are private and unrelated to his public duties.

Nissen won the first phase of the case, after an argument that stretched to the Washington State Supreme Court and back. The high court found that records held on private devices can be public if they relate to public business.

A subsequent court ruling found that a text message Lindquist sent to one of his subordinates, urging comment on a News Tribune story involving Nissen, qualified as a public record. That ruling led to a $128,000 award of fines and fees against the county in 2016.

The current case, known in legal shorthand as “Nissen II,” represents the second phase of the same argument. It relates to a larger batch of 153 text messages sent over the course of a week in 2011.

Twice this year, Judge Lanese asked Lindquist to submit affidavits describing the text messages clearly enough to determine their potential public nature, according to court records. Twice, Lanese found Lindquist’s descriptions were insufficient.

Twice this year, Judge Lanese asked Lindquist to submit affidavits describing the text messages clearly enough to determine their potential public nature, according to court records. Twice, Lanese found that Lindquist’s descriptions were insufficient.

Lanese’s latest ruling found that most of the text messages don’t qualify as public records, but he ruled that 19 of them warrant in-camera review. The 19 messages are exchanges between Lindquist and unnamed county employees he describes as friends, but does not identify.

Lindquist declined to comment directly for this story. Attorney Stewart Estes, who has represented his personal interests at no cost throughout the case, offered a brief statement via email:

“The safety of all public servants, as well as their families and friends, will be in jeopardy if any criminal or citizen is somehow entitled to see personal messages on their personal phones,” Estes said.

Nissen’s attorney, Joan Mell, relayed a statement from her client, who noted she was ordered to turn over all of her own phone records, including text messages, as a result of her clash with Lindquist.

“We are one step closer to an outcome that holds Mark Lindquist accountable,” Nissen said. “The past six years or so have been hard because the prosecutor constantly attacks me for defending myself. I am grateful the court did not let him decide on his own that his work texts were not public. I wish Pierce County would have just had him turn over the texts from the beginning.”

The ruling requires Lindquist to submit the text messages to the court by Jan. 5. That prospect sets up a decision point, and brings the County Council into the fray.

The ruling requires Lindquist to submit the text messages to the court by Jan. 5. That prospect sets up a decision point, and brings the Pierce County Council into the fray.

The council asserted its control over the case in late 2015, after questions emerged about possible conflicts of interest, and whether Lindquist could represent himself and the county’s legal interests at the same time. The answer was no. Outside attorney Michael Tardif was appointed to represent the county.

In theory, the county could appeal the judge’s ruling regarding in-camera review of the text messages. The decision would rest with the council, but members haven’t had a chance to discuss it yet, and won’t until Jan. 2, when they’re likely to meet in a private executive session to examine their alternatives.

An appeal would generate additional legal costs, sending the county down the same path that led to an unfavorable Supreme Court ruling, along with associated penalties and costs that ended the first phase of the text-message case last year.

Council Chairman Doug Richardson said he couldn’t discuss the topic without more information.

“We would have to visit with the attorney in executive session,” he said Thursday. “I can’t presume to speak for the whole council. I’m not in a position to do that.”

BAR COMPLAINT DEVELOPMENTS

The bar association’s decision to seek a public hearing carries significant freight. Action is a long way off, perhaps as long as six months, but the consequences include possible suspension of Lindquist’s license to practice law, which would prevent him from serving in elected office.

It also subjects him to a process the public can see. The initial stages of the bar complaint process are opaque, not subject to public scrutiny, in keeping with standard practice.

The bar’s order for a public hearing changes that. The process, including legal filings, testimony and the hearing itself, is open to the public.

The issue is Lindquist’s appearance on the Nancy Grace show on the eve of closing arguments in the trial of Skylar Nemetz, who was charged with first-degree murder after the death of his wife, Danielle. She was fatally shot in the back of the head as she sat at her computer in the couple’s Lakewood apartment in 2014.

Skylar admitted the shooting, but claimed it was accidental. Ultimately, he was found guilty of first-degree manslaughter.

The Nancy Grace broadcast aired while jurors were on hiatus, shortly before closing arguments. Skylar Nemetz wept on the stand during his testimony. Grace, known nationally for her tabloid-style takedowns of defendants, mocked his tears, rubbing her eyes and saying, “Wah, wah, wah.”

Lindquist made a guest appearance on the show after an invitation — it was the second time he had agreed to be Grace’s guest, following an initial appearance shortly after charges were filed. He speculated about the motives of the defendant, saying among other things that Skylar’s actions “add up to murder.”

Lindquist made a guest appearance on the show after an invitation — it was the second time he had agreed to be Grace’s guest, following an initial appearance shortly after charges were filed. He speculated about the motives of the defendant, saying among other things that Skylar’s actions “add up to murder.”

The resulting publicity led to immediate fallout and criticism of Lindquist, nationally and locally. Critics contended the decision was a self-serving publicity grab that could have tainted the trial. A panel of Fox News legal experts called it “not smart.”

Hearing of the broadcast, defense attorney Michael Stewart promptly moved for a mistrial. Superior Court Judge Jack Nevin, who had seen the broadcast while on vacation, denied the motion, saying there was no evidence to show jurors had seen it or been influenced by the broadcast.

The bar complaint against Lindquist operates differently, suggesting his actions violated professional standards for prosecutors, regardless of court action.

Filed by local defense attorney John Cain, the complaint alleged Lindquist threatened Nemetz’s right to a fair trial, and violated rules of professional conduct governing extrajudicial statements in the interests of seeking publicity. The bar association’s office of disciplinary counsel agreed in September, and recommended a public hearing.

Prosecutor Lindquist has a duty to communicate with the public he serves. His comments in this instance were entirely within the rules and in line with comments made by elected prosecutors for decades.

Steven Fogg, attorney for Lindquist

The sharpest allegations in records associated with the complaint, along with separate records obtained by The News Tribune, indicate Lindquist’s subordinates, Deputy Prosecutors Greg Greer and Jared Ausserer, opposed his appearance on Grace’s show.

Records say their concerns were relayed by Heather Songer, a 29-year-old assistant hired by Lindquist to handle media relations. Greer, Ausserer and Songer were interviewed by bar association investigators earlier this year.

Emails obtained by The News Tribune show Songer vetted questions from Grace’s producer and said the prosecutor couldn’t answer some of them. The broadcast shows Lindquist addressed the questions anyway. Lindquist fired Songer not long after the controversy erupted.

Subsequent records from bar complaint filings include a sworn affidavit from Ausserer, who states he did not directly advise Lindquist not to appear on the Nancy Grace show, and did not recall hearing Songer give Lindquist such advice.

The subtle distinction — whether Ausserer told Lindquist directly and whether he indirectly shared his misgivings with Songer — sets up what could be a key point in the public hearing, where the parties must testify in public under oath.

If Ausserer and Songer are called as witnesses, their accounts of discussions with Lindquist about the television appearance could collide.

Attorney Steven Fogg, who is representing Lindquist before the bar association at taxpayer expense, contends Lindquist’s Nancy Grace appearance didn’t violate any rules.

“In addition to protecting the public, Prosecutor Lindquist has a duty to communicate with the public he serves,” Fogg wrote. “His comments in this instance were entirely within the rules and in line with comments made by elected prosecutors for decades.

“Politically-motivated bar complaints are a fact of life for all elected prosecutors. My client’s focus remains where it has always been: keeping Pierce County safe.”

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