Crime

Judge dismisses long-running sex-abuse case, citing “prosecutorial vindictiveness” by Pierce prosecutors

Citing misconduct by Pierce County prosecutors, Superior Court Judge Edmund Murphy ruled Monday to dismiss the child sex-abuse case against a former Longbranch woman accused of victimizing her daughter.

“The court is going to dismiss the case with prejudice on the basis of prosecutorial vindictiveness,” Murphy said in an oral ruling. The ruling means the charges can never be re-filed.

It’s the second time charges have been dismissed against Lynn Dalsing, 48, since prosecutors first charged her in December 2010 and dismissed the case without prejudice in 2011. Dalsing subsequently sued the county for false arrest in 2012. Monday’s ruling opens a potential door in that matter, which is still ongoing.

The finding of vindictiveness, a rare outcome, was a stunning loss for prosecutors. The ruling came from a judge who knows them well. Murphy, a former chief felony prosecutor for Pierce County, was appointed to the bench in 2010.

In his ruling, he rejected arguments that new information and evidence justified the new charges and sided with defense attorneys who argued that prosecutors filed new charges to gain an advantage in Dalsing’s lawsuit.

Murphy noted that prosecutors re-opened a dormant criminal investigation in 2013 after Dalsing won a series of favorable rulings in her suit.

Pierce prosecutors forwarded investigative information to Snohomish County prosecutors, who declined to file charges in June 2013 — but Pierce prosecutors continued the investigation after that. After Dalsing won another favorable ruling in her lawsuit, they filed new charges in 2014: two counts of first-degree child rape, three counts of first-degree child molestation, and three counts of first-degree sexual exploitation of a minor. The new charges, all dismissed by Murphy’s order, carried a possible lifetime prison sentence.

Murphy found the alleged new information cited by Pierce County prosecutors wasn’t new. He said prosecutors knew most of it when they filed their original charges in 2010, but didn’t pursue it until they began losing rulings in the lawsuit.

“The bottom line, to this court, is the information obtained … either was known, could have been obtained before the dismissal, or didn’t add much if anything to the case at all,” he said.

Dalsing did not comment after the hearing, on the advice of her attorneys. One of her defense attorneys, Les Tolzin, mouthed one word — “wow” — after Murphy read his decision.

The News Tribune sought reaction from Pierce County Prosecutor Mark Lindquist. His office replied with a statement from Deputy Prosecutor Jared Ausserer, who handled the criminal case along with Deputy Prosecutor Kit Proctor.

“The evidence shows that a mother helped her husband, a man she knew was a convicted sex offender, sexually assault their daughter and two other girls,” Ausserer’s statement said. “A previous court found probable cause to support the charges. A defendant should not be able to evade responsibility by filing a lawsuit. It’s our duty to file charges when we have strong evidence of guilt, even where procedural mistakes may have been made. A jury should have been allowed to hear the facts.”

Dalsing’s other crimimal defense attorney, Don Winskill, said the judge’s ruling didn’t support Ausserer’s assertions.

“There is no evidence in this case that she helped him molest anybody. And she has always denied doing so,” Winskill said. “No one would listen to her the first time around. That first court dismissed the case because there was no evidence, and four years later she’s charged with more crimes than she was charged with the first time, on no more evidence than there was the first time — actually less evidence.”

The case began in September 2010, when Pierce County sheriff’s deputies charged Michael Dalsing and his friend William Maes with multiple counts of child rape. The victims were Dalsing’s daughter, then 7, and two of her 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.

Lynn Dalsing was married to Michael Dalsing. In December 2010, after her husband was arrested and charged, prosecutors charged her with one count each of child molestation and sexual exploitation of a minor. The charges were based largely on a single photo found on computers in the couple’s home.

Michael Dalsing collected child pornography images, according to records. Prosecutors contended that the photo depicted Lynn Dalsing and her daughter.

They were wrong; the photo was part of a series of images known to federal investigators. It dated to the year 2000, long before Lynn Dalsing met her husband and their child was born.

Lynn Dalsing spent more than seven months in jail before prosecutors conceded the false identification tied to the photo. Prosecutors dismissed those charges against her without prejudice, meaning the counts could be refiled later.

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,” referred to the photo initially cited in the charges against Dalsing. A sheriff’s detective uttered those words, saying the woman in the picture could not be identified as Dalsing — or anyone else.

Following the first dismissal, the criminal investigation of Dalsing ceased. Records from the case file show no activity from July 2011 until April 2013, when Dalsing won a favorable ruling in her lawsuit.

At that point, prosecutors forwarded the case to Snohomish County prosecutors, citing the appearance of a conflict of interest. They cited new information gleaned during investigation as a reason for the case to be reopened and supplied that information to their Snohomish counterparts.

Much of it hinged on disclosures from Dalsing’s daughter, who told a forensic interviewer that her mother walked in on her father and saw the abuse. Lynn Dalsing tried to stop the behavior and fought with her husband, but the abuse continued, according to records. The child gave similar accounts during counseling, describing more than one incident and suggesting her mother was aware, records state. Multiple versions of the child’s accounts appear in court records.

Snohomish County prosecutors declined to file new charges.

Records indicate that a Pierce County civil prosecutor, James Richmond, continued to gather information after that and shared it with his colleagues on the criminal side.

Pierce prosecutors decided to file new charges on their own in March 2014. They contended that Dalsing knew her husband had a prior conviction for a sex offense dating to 1983 and had received training regarding parenting duties under those circumstances. They suggested that Lynn Dalsing knew about the abuse, and enabled it — an allegation Dalsing denied.

That led Dalsing’s new defense team to file motions accusing prosecutors of vindictiveness, misconduct and conflict of interest. In court Monday, Tolzin hammered the lack of new information.

“For nearly two years they did absolutely nothing,” Tolzin said of prosecutors. “It was only after they started losing in the civil case, only after it became apparent that they had intentionally withheld exculpatory evidence, that they reopened the criminal investigation. It is out of their desire to punish her because she had the audacity to file a civil suit. That is why this is vindictive. They have upped the ante against her. There is no new evidence to support these charges of child rape.”

Proctor gave the rebuttal.

The deputy prosecutor acknowledged that Dalsing’s civil lawsuit was a source of new evidence, but she also said prosecutors properly left themselves the option to seek additional evidence of guilt after the case against Dalsing was dismissed the first time. She added that subsequent information, including disclosures from Dalsing’s daughter, was much more detailed.

“What was happening in the civil suit brought a lot of information to our attention,” she said. “Knowing about counseling is not the same as knowing what’s being said in counseling.”

Judge Murphy asked about the Snohomish County factor and declarations from Ausserer in Dalsing’s lawsuit that acknowledged the handoff of the case in 2013.

“Here’s one of the big concerns that I have, and that is the issue of a conflict of interest,” Murphy said. “Snohomish files a notice of decline. That notice says they received the case because of a conflict of interest, then all of a sudden it’s changed. Why would that conflict not continue throughout?”

Proctor replied.

“(Ausserer) never says that there was a conflict,” she said. “He says there was an appearance of conflict. So that was a cautionary thing that we did.”

Murphy pressed.

“Where did the appearance of conflict go?”

“I suppose you could argue that there still is an appearance of conflict,” Proctor said.

Tolzin stood again after Proctor’s statement and covered the ground once more. Repeatedly saying, “they knew,” he cited examples of information prosecutors possessed from the beginning of the original case: disclosures from the child, disclosures from Lynn Dalsing about her prior knowledge of her husband’s criminal past.

“They had dismissed charges, and they had decided not to pursue that information,” Tolzin said, “twenty-one months where they sat on their hands and did absolutely nothing.”

After that, Murphy retired to his chambers for about 20 minutes. He returned with a recitation: a chronological rundown of facts from 2010 to the present, mixed with legal citations.

He called a finding of vindictiveness “an extraordinary remedy,” suitable only in rare circumstances where a defendant’s rights are prejudiced. When his chronology reached the point of Snohomish County’s involvement, he stopped for a snapshot.

“Conflict doesn’t end when another entity makes a decision you don’t agree with,” he said. “The problem in this case is the lack of an objective assessment from the prosecutor’s position. Pierce County recognized the conflict in 2013, but only for a month, and only until the Snohomish County Prosecutor made a decision they did not agree with.”

As he closed, Murphy listed the information county prosecutors had known from the beginning — even if less detailed, it referenced the same circumstances cited in the new criminal charges. It wasn’t new evidence.

“The state has not rebutted the presumption of vindictiveness,” Murphy said. “Almost three years passed from dismissal to refiling of charges. During that time period it does not appear that much investigation was being done.”

Next steps were unclear Monday. In the absence of criminal charges, Dalsing’s lawsuit, long delayed by the active criminal investigation, can move forward in King County Superior Court.

Pierce prosecutors could appeal Murphy’s decision in the criminal case — Dalsing’s attorneys expect that — but in the near term, a hearing in the criminal case is set for April 20, likely punctuated by formalizing Murphy’s oral decision.

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