Defense attorneys say Pierce County prosecutors are trying too hard to win a criminal case and cutting ethical corners because they’re desperate to avoid losing a lawsuit.
The allegations: prosecutorial misconduct, vindictiveness and conflict of interest. They appear in a series of heated legal briefs filed in the last few weeks in Pierce and King counties.
They’re tied to child-rape charges against Lynn Dalsing, a mother arrested in 2010 after she was falsely identified in an ugly photo.
The charges were dismissed; Dalsing sued for false arrest and won a series of rulings tied to sealed investigative records. In March 2014, after one of the rulings for Dalsing, prosecutors filed new charges of child rape against her, effectively halting the disclosures in the lawsuit.
Prosecutors say they’ve done nothing wrong.
“We’re a public entity doing what we think is right,” said deputy prosecutor Jared Ausserer. “And we want to be open and honest and fair and let the process take care of itself.”
Les Tolzin and Donald Winskill, the defense attorneys who represent Dalsing, see the case differently.
They accuse prosecutors of trampling Dalsing’s legal rights, resisting the rulings of 11 judges, conducting warrantless searches and ignoring declared conflicts of interest that briefly sent the case to Snohomish County in 2013.
“The Pierce County Prosecuting Attorney’s Office simply cannot act impartially in this case, and must be removed,” one brief states.
Tolzin, reached Friday by The News Tribune, declined to comment on the case, and said the multiple briefs he and Winskill have filed speak to their positions.
The bare-knuckle battle is the talk of the county courthouse. The News Tribune first reported on the case in June 2014 in a story headlined, “The Case of Four Little Words.”
The words, “We can’t see her,” refer to the photo that initially was cited in the charges against Dalsing. A detective uttered those words, saying the woman in the picture could not be identified as Dalsing — or anyone else.
After multiple delays and continuances, the next chapter will play out in two courtrooms in Seattle and Tacoma in the next two weeks.
Dalsing, 48, a former Longbranch resident, spent seven months in jail before prosecutors conceded the false identification tied to the photo and dismissed the child-rape charges against her without prejudice, meaning the counts could be refiled later.
Her subsequent lawsuit led to a two-year debate over the sealed investigative records that sailed to the Washington State Supreme Court and back — every ruling rejecting prosecutors’ arguments against disclosure.
At the time of Dalsing’s arrest, prosecutors charged her husband Michael Dalsing and his friend, William Maes, with multiple counts of child rape. The victims were Dalsing’s 7-year-old daughter and the child’s two young friends.
Both men pleaded guilty and were convicted in 2011.
Michael 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 now allege Lynn Dalsing is guilty of child rape — and subject to a possible life sentence in prison — because she knew or should have known what her husband was doing.
The basis, cited in court records, comes from a forensic interview and other statements from her then 7-year-old daughter.
The child reportedly told an interviewer in 2010 that her mother walked in on her father taking inappropriate photographs, and fought with him about it, but the abuse started again after that.
Dalsing acknowledged fighting with her husband over the photograph incident — but says she didn’t know about his other acts.
After four years of litigation and discovery, the alleged photographs haven’t been found. The other two children never accused Lynn Dalsing of direct participation in the acts of abuse, according to records.
Defense attorneys say the new charges reflect a continuing pattern of misconduct. They point to deputy prosecutor Jim Richmond, who is representing the county in Dalsing’s false-arrest lawsuit.
Court records, including internal correspondence, reveal that Richmond hired a computer expert in April 2013 to re-examine computers seized from the Dalsing household in 2010. The expert’s analysis concluded Lynn Dalsing could have accessed the files where her husband kept troves of child porn imagery.
The computer search was conducted without a warrant or notification. Dalsing’s attorneys say the move violated her legal rights.
Prosecutors say they were relying on a warrant filed in 2010 — but months after the expert’s analysis, a new warrant was filed that authorized a search of the computers.
If no second warrant was needed, why file it?
Asked that question, Ausserer said prosecutors are “not sure it was even necessary.” He said the warrant was filed by Lakewood police, who were recruited to conduct the new investigation of Dalsing.
“They (Lakewood) did it prophylactically, really,” Ausserer said.
Why was Lakewood involved? That leads to a broader argument from defense attorneys regarding conflict of interest.
In 2013, Pierce County prosecutors forwarded the Dalsing investigation to Snohomish County prosecutors for a possible charging decision, citing “new evidence.” Lakewood police, rather than Pierce County sheriff’s deputies, took charge of the inquiry.
At the time, Ausserer and Richmond stated that Pierce County was stepping away from the criminal case.
“To avoid any appearances of a conflict of interest, I have provided the case file information and new intelligence to other law enforcement agencies so that they can independently continue the investigation of Ms. Dalsing in association with the Snohomish County Prosecutor’s office.”
— Ausserer declaration, King County Superior Court, May 2, 2013
“...We well understand that Pierce County cannot any longer handle the criminal investigation,”
— Richmond, statement in open court, May 8, 2013
Snohomish County prosecutors picked up the reins and examined the alleged new evidence, which leaned on the original 2010 statement from Dalsing’s daughter regarding her mother’s knowledge.
After that assessment, they issued a statement labeled as a decline notice.
“I reviewed this case after the Pierce County Prosecutor’s office developed a conflict. There was some indication that the victim ... may have made new disclosures about the participation of her mother in sexual exploitation of the victim. ... they are not new information which would warrant re-interviewing this child.”
— Decline notice from Snohomish County Deputy Prosecutor Lisa Paul, June 11, 2013
The decline notice ended Snohomish County’s involvement, but Pierce County prosecutors continued to gather evidence.
On June 22, 2013, Richmond interviewed William Maes, the friend of Michael Dalsing who had been convicted of child rape. Maes offered to talk about Lynn Dalsing’s alleged involvement in abuse of the children — in exchange for his release from prison.
To Lynn Dalsing’s defense attorneys, that act and others by Richmond flouted earlier statements that Pierce County was removing itself from the criminal investigation.
Ausserer, interviewed Friday, disagreed. He said the civil attorneys handling Dalsing’s false-arrest lawsuit were interfering with the criminal investigation, even after Snohomish County took over.
He added that Snohomish County’s decision was limited, based solely on whether to conduct another interview of Dalsing’s daughter.
“I sent it up there (to Snohomish County) because I wanted to avoid the appearance of a conflict — I didn’t say there was a conflict,” Ausserer said. “This is a criminal investigation. Either there’s facts to support a charge or there’s not. I made the decision to bring it back.”
Defense attorneys accuse the county of sophistry.
“Despite the utter dearth of evidence in the criminal case, the Pierce County Prosecutor’s office has pursued the case with a vengeance, solely because it gives the county an advantage in the civil action. DPA Richmond, the civil prosecutor representing the county in the civil matter, has been involved in each and every stage of the renewal of the criminal investigation.”
— Motion to dismiss, Feb. 23, 2015
The defense attorneys also argue that because of those actions, Pierce prosecutors, including Ausserer and Richmond, might be called as witnesses — another argument to hand the case to another office.
Some of the arguments are scheduled for Monday (March 16) before Pierce County Superior Court Judge Ed Murphy. Others are slated for argument on March 30.
A separate hearing in King County Superior Court is set for Friday. It revolves around the continuing debate over sealed records tied to the original charges against Dalsing and the misidentified photo.
Prosecutors have resisted disclosing the records for two years — their latest loss came Feb. 4, when the state Supreme Court rejected another appeal.
Despite those delays, prosecutors say the sealed records — a group of emails between prosecutors and detectives and a set of legal memos — don’t contain anything special. He added that they’ll be offered to Judge Murphy for a private review.
“There’s nothing exculpatory in those documents,” Ausserer said. “Nothing exculpatory in those emails. There’s nothing there.”
Again, defense attorneys disagree.
They say the four-year saga in the Dalsing case is tied to the sealed records, and an effort to prevent their disclosure, justifying the drastic step of taking the case out of the county’s hands.
Tolzin’s 126-page brief charging the office with misconduct takes direct aim at the idea.
“This court should recognize that public policy is promoted where a court bars a prosecutor’s office from abusing its awesome power to vindictively prosecute a case where the prosecutor is protecting itself,” Tolzin wrote.