A new complaint against Pierce County Prosecutor Mark Lindquist accuses him of trying to improperly influence a judge, calls for a federal criminal investigation of his office and declares that Lindquist is “unfit to practice law.”
The 103-page bar complaint includes 958 pages of exhibits and attachments. It was filed Friday with the Washington State Bar Association, the organization that licenses lawyers and sets rules governing their conduct. It was signed by deputy prosecutor Steven Merrival, a 33-year veteran of the office; local defense attorney John Cain; and Mike Ames, a former county sheriff’s deputy.
The new complaint turns up the heat on Lindquist, who already faces two whistleblower complaints filed by employees of his office, including one from Merrival. Those complaints, already under investigation by county officials, accuse Lindquist and his staffers of various acts of misconduct.
The bar complaint runs on a different track. It takes direct aim at Lindquist’s legal license, accusing him of violating 19 rules of professional conduct.
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The complaint levels similar accusations at six of Lindquist’s high-ranking staffers. The staffers hold varying degrees of responsibility and authority. Some allegations in the complaint refer to their supervisory duties and their alleged failure to prevent violations of professional rules.
“The Pierce County Prosecutor and his deputies have abused the power and authority of the prosecutor’s office,” the complaint states. “The Pierce County Prosecutor and his deputies filed criminal charges against a civil litigant to cover up their own wrongdoing, to seek advantage in a civil lawsuit, and to avoid liability. The Pierce County Prosecutor’s abuses of office violate the Rules of Professional Conduct.”
The News Tribune sought comment from Lindquist on Friday afternoon. His assistant said the office had not received a copy of the bar complaint. Lindquist provided an emailed statement:
“We are in the business of holding people accountable, and some will complain. We remain focused on doing our jobs, serving the public and keeping our community safe.”
Influencing a judge?
Much of the complaint references prosecutor actions in a long-running sex-abuse case dismissed with prejudice on March 30 by Superior Court Judge Edmund Murphy due to prosecutorial vindictiveness. Prosecutors had charged the defendant, Lynn Dalsing, twice in a four year-span before the dismissal.
Murphy’s ruling is the backdrop for the allegations of improper attempts to influence a judge, according to the complaint. Following the ruling, prosecutors filed a motion for reconsideration — an effort to persuade Murphy to change his mind.
The complaint refers to a meeting with Lindquist attended by an unnamed deputy prosecutor.
“A DPA will affirm he attended a meeting where Lindquist said the office needs to ‘reach out to a judge to go talk to Ed (Murphy),’ ” the complaint states.
Lindquist later called Superior Court Judge Jack Nevin, asking “How do we frame a motion for reconsideration?” or “How do we get a judge to change his mind on a motion for reconsideration?” the complaint states.
It adds that Lindquist asked Nevin to review the reconsideration motion prosecutors intended to file in the Dalsing case.
The News Tribune spoke to Nevin on Friday. He confirmed that he received the call from Lindquist. Nevin said he was preoccupied by a complicated, unrelated trial when Lindquist spoke to him.
“It was essentially, how do you get a judge to change his mind — or how does one frame a motion for reconsideration,” Nevin said.
Nevin said it’s not uncommon for lawyers to call him with questions about fine legal points. He is an adjunct professor at the Seattle University School of Law, where he teaches trial practice and rules of evidence.
Nevin said he guessed that Lindquist was calling about Murphy’s vindictiveness ruling, which had received significant publicity.
“I said, well, what case is this about — is this about Judge Murphy’s case?” Nevin said. “I just said I’m not comfortable discussing that.”
Nevin said the conversation ended at that point. He said he could not remember whether Lindquist specifically asked him to review the prosecutors’ pending motion in the Dalsing case.
“I don’t recall precisely him asking me to look at pleadings,” Nevin said. “He could have, but I don’t remember that. I’m not saying it didn’t happen.”
Asked by The News Tribune whether the call made Nevin uncomfortable, he said, “a bit.”
Was Lindquist’s call inappropriate?
“Whether it’s appropriate or not goes to the heart of what the intent of the call was,” Nevin said. “Having cut it off when I did, I don’t know what the intent of the call was. Insofar as you’re contacting a sitting judge about a matter pending before one of his colleagues — I don’t think that’s appropriate.”
Nevin quickly reported the call to presiding Judge Frank Cuthbertson, who looked at the rules of professional conduct that refer to contact with judges. Cuthbertson spoke to The News Tribune on Friday, and explained his reaction to the incident.
“I didn’t think that it was a per se violation of the rule,” Cuthbertson said. “I was concerned about it though, I’ll tell you that — and didn’t think it was appropriate. However, I thought that Judge Nevin handled it correctly.”
Cuthbertson said he consulted David Boerner, another professor at Seattle University who teaches legal ethics. Based on Nevin’s description of the call, Boerner reportedly said he didn’t think it rose to the level of an ethical violation, Cuthbertson said.
Cuthbertson and Nevin said they did not tell Judge Murphy about the incident at the time; they didn’t want to interfere with his pending ruling on the motion for reconsideration, which Murphy ultimately rejected. After that decision, Murphy was informed about Lindquist’s contact. Nevin and Cuthbertson also were unaware of the allegation in the bar complaint regarding Lindquist’s statement about reaching out to Murphy.
The allegation of improper influence of a judge is one among many in the bar complaint. Most of the others link to the Dalsing case. They include allegations that prosecutors filed false declarations and made improper statements to the media intended to disparage Dalsing.
• The complaint states that deputy prosecutors Lori Kooiman and Tim Lewis wrongly charged Dalsing with child molestation in 2010,based on a photograph
that was later proved to have nothing to do with her. Dalsing’s face was not visible in the photograph. The original charges filed by prosecutors said the background matched her bedroom, which later was proved to be untrue.
The complaint notes that Kooiman and Lewis were told via email by sheriff’s deputy Mike Ames that he could not tie Dalsing to the photograph. Kooiman, replying to Ames via email, said she would have to disclose his email to Dalsing’s defense attorney.
Kooiman did not, according to records; Dalsing spent another month in jail. When her defense attorney moved for a dismissal, prosecutors argued for a continuance of the trial, despite their knowledge of the photograph.
Following the original dismissal of charges, Dalsing sued the county for false arrest and malicious prosecution. The bar complaint contends that prosecutors wrongly delayed discovery of evidence regarding the misidentified photograph, stalling through multiple appeals.
After losing one of those appeals in 2014, prosecutors filed new charges against Dalsing, including multiple counts of child rape. The bar complaint contends the charges were wrongly filed to continue discovery delays, that civil and criminal prosecutors wrongly colluded in the filing of those charges, and that Lindquist made the final decision to proceed.
• Other allegations refer to the “confederacy of dunces,” a term reportedly used by Lindquist to describe a group of defense attorneys.
The attorneys filed declarations in a separate lawsuit suit involving Ames, who had been branded as dishonest by prosecutors after he tried to disclose his email regarding Dalsing and the photograph.
Ames’ suit asked for a name-clearing hearing. Prosecutors fought that request and won the argument. Afterward, they added a demand for attorney fees of $118,000.
In response, the defense attorneys filed their declarations, voicing objections to what they saw as a punitive tactic by prosecutors.
The bar complaint, and the earlier whistleblower complaints, contend that Lindquist dubbed the defense attorneys as the “confederacy of dunces,” and ordered his deputy prosecutors to shun them and deny standard plea bargains in their cases.
The complaint contends that those actions against the attorneys verge on violation of the rights of criminal defendants and prejudice the administration of justice.
“The order to deputy prosecutors to treat certain attorneys differently likely constitutes the violations of state and federal law,” the complaint states. “Accordingly, the WSBA should make a criminal referral to another investigative and prosecuting authority at the State and Federal level.”
Bar complaints are investigated privately, according to a description of the process on the association website. Typically, complaints and results of investigations are not publicly accessible unless they result in discipline, which can range from reprimands to suspension of an attorney’s license, either temporarily or permanently.
A disciplinary board oversees disciplinary recommendations, which are forwarded to the state Supreme Court. The high court makes the final decision on recommended sanctions.