After two years of preliminaries, Pierce County Prosecutor Mark Lindquist faces a formal disciplinary hearing before the Washington State Bar Association to determine whether he violated the rules of professional conduct for lawyers.
One significant catch: the hearing won’t take place until Dec. 12, five weeks after the Nov. 6 general election. Lindquist is seeking a third term, battling Mary Robnett, his former chief criminal deputy.
The upshot: Whether he wins or loses in November, Lindquist will face a reckoning with his peers, featuring public testimony and briefings regarding his conduct. Potential penalties range from a dismissal to a comparatively minor advisory letter or the suspension of his license to practice law.
The complaint, filed in May 2016 by local defense attorney John Cain, contends that Lindquist jeopardized the integrity of an active murder trial in pursuit of national media publicity. Lindquist appeared on the now-canceled "Nancy Grace" legal talk show when jurors were in recess and commented on a defendant’s guilt shortly before closing arguments.
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The defendant, Skylar Nemetz, was charged with first-degree murder following the 2014 shooting of his wife, Danielle. Nemetz said the shooting was accidental. Ultimately, a jury found him guilty of manslaughter.
Lindquist appeared on the Nancy Grace program against the advice of his staffers, according to the bar complaint. His comments referred to Nemetz’s motive as “jealousy,” and he added that the defendant’s actions “add up to murder, rather than an accident.”
Defense attorney Michael Stewart moved for a mistrial, citing Lindquist's actions. Superior Court Judge Jack Nevin, who saw the broadcast while working out at a gym, denied the motion, saying there was no proof jurors saw the show.
The bar association’s formal complaint against Lindquist takes note of those circumstances, while stating that the judge's ruling has no bearing on the complaint. The violation of professional rules is the issue, regardless of the trial's outcome. The complaint contends that Lindquist risked “materially prejudicing” the trial.
The road to the hearing has been long. Bar association officials considered the original complaint against Lindquist for more than a year before recommending the disciplinary hearing last September. The association’s disciplinary board followed up in December, with an order for a public hearing.
Negotiations followed. The disciplinary board recently set the hearing date, after discussions with Stephen Fogg, the attorney defending Lindquist at public expense.
Fogg argued for a hearing in December or January, saying his trial schedule for the remainder of 2018 wouldn’t allow him to participate any earlier, according to a transcript of the discussion.
When the complaint was first filed, Fogg called it “baseless” and “politically motivated.” Records obtained by The News Tribune show he argued for a dismissal.
The bar association’s Office of Disciplinary Counsel disagreed and recommended the hearing, while invoking the prospect of possible license suspension. Again, Fogg called the complaint “politically motivated,” said Lindquist's actions didn't violate the rules and that there was “zero chance” that Lindquist’s license would be suspended.
When the bar association’s review committee ordered the hearing in December, Fogg repeated his refrain, calling the complaint “politically motivated.”
Five months later, Fogg sings the same song. Asked for comment on the scheduled hearing, he supplied an emailed statement:
“Like waves on the ocean, politically-motivated bar complaints are an inevitable fact of life for all elected prosecutors,” he wrote. “Indeed, the best evidence of the political motivation of this complaint is the complainant’s unprecedented (and unsuccessful) demand that the process conclude before the election.”
It’s true that Cain requested a hearing before the election. His attorney, Kenneth Kagan, underlined the reasons in a recent letter to the bar association:
“Rather than seeking to avoid the upcoming election being affected in any way by the outcome of this public hearing, Pierce County voters have a right to know if their incumbent Prosecuting Attorney has engaged in professional misconduct, and if so, what the recommended sanction would be,” Kagan wrote. “If (Lindquist) succeeds in avoiding a hearing before November 6, 2018, and, additionally manages to win re-election, chaos would later ensue if the hearing results in his suspension, which would likely result in his ineligibility to serve as the Pierce County Prosecuting Attorney.”
While bar complaints against elected prosecutors are common, they rarely reach the stage of public hearings and recommended discipline. The most recent example involved former Grant County Prosecutor Angus Lee, who was the subject of a bar complaint in 2009. He received a reprimand from the bar association in 2016, two years after losing a re-election bid.
The guts of the complaint against Lindquist show that his own staffers, deputy prosecutors Greg Greer and Jared Ausserer, advised Lindquist not to appear on the Nancy Grace show. Their concerns were relayed by Heather Songer, an assistant hired by Lindquist to handle media relations. She was fired shortly after the Nemetz trial.
All three were interviewed by bar investigators.
“DPA Greer, DPA Ausserer and Ms. Songer thought it was a bad idea and strongly opposed it,” bar records state. “Their concerns were conveyed to PA Lindquist, but he wanted to do the interview anyway.”
Following the broadcast, Lindquist found himself embroiled in controversy. A pair of Fox News commentators referred to his decision to appear on the show, and called it “not smart.”
Lindquist later spoke to The News Tribune’s editorial page editor about his TV appearance, and claimed he was “not familiar with the format” of Grace’s show. He had appeared on the show a year earlier, discussing the same case, and vetted the questions beforehand with his staff.
The bar’s hearing officer set a schedule for briefing, witness lists and exhibits, with a series of deadlines that begin Sept. 17. The hearing will be held at the bar association’s offices in Seattle. It will be open to the public.