Pierce County prosecutors are appealing a long-running sex-abuse case they’ve already lost twice, most recently in a March 30 ruling by Superior Court Judge Ed Murphy that tagged them with misconduct due to prosecutorial vindictiveness.
Court records from the case, State v. Lynn Dalsing, show that prosecutors filed a notice of appeal Monday, the last possible day to pursue the option.
The controversial Dalsing case is a key component of three complaints that accuse Prosecutor Mark Lindquist of multiple acts of misconduct.
One is a bar complaint that alleges violations of legal rules by Lindquist and his deputies in the Dalsing case. It includes an allegation that Lindquist tried to improperly influence Murphy’s opinion.
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Two whistleblower complaints filed in May by deputy prosecutors Steven Merrival and Stephen Penner, Lindquist’s chief criminal deputy, also reference the Dalsing matter.
Penner’s complaint states that he and another prosecutor raised concerns about appealing the vindictiveness decision and advised against it. A recall petition filed against Lindquist last week also references the Dalsing case.
Asked for comment Tuesday, Lindquist replied with an e-mailed statement:
“The Prosecutor’s Office refiled charges against Lynn Dalsing when it learned she knew her husband was sexually abusing their daughter, and she facilitated this abuse by continuing to leave her daughter alone with him.
“She also allowed her sex-offender husband unsupervised access to two other young girls at her house, which resulted in their sexual abuse. The office filed a notice of appeal from the order of dismissal to further evaluate the record.”
Lindquist added a separate quote:
“I’m confident our deputy prosecutors were trying to do the right thing for the right reasons — protecting children and holding those who harm them accountable.”
Defense attorney Les Tolzin, who represented Dalsing in the criminal case, said the appeal wasn’t surprising.
“I’m confident we’re going to prevail on appeal, so we’ll see what happens,” he said.
Seattle attorney Fred Diamondstone, who is representing Dalsing in a false-arrest lawsuit tied to the criminal case, said the vindictiveness finding should survive.
“Judge Murphy’s careful and well-considered opinion should be affirmed on appeal,” Diamondstone said.
Dalsing, a former Longbranch resident, was originally charged with child molestation in 2010, after sheriff’s deputies arrested her husband, Michael Dalsing, and charged him with multiple counts of child rape. The victims were Dalsing’s then-7-year-old daughter and two young friends.
The charges against Lynn Dalsing were based on a child pornography photo alleged to depict her and the child, but evidence later proved the photo had nothing to do with her.
Prosecutors dismissed the charge in July 2011, but not before she spent seven months in jail while her attorney tried to obtain a copy of the photo.
Dalsing sued the county for false arrest in 2012. Records from the county’s risk management division show Lindquist’s office has spent $111,152 on outside attorneys to fight the ongoing lawsuit.
Prosecutors subsequently filed new charges of child rape against Dalsing in 2014. They accused her of knowing about her husband’s abuse of the children, aiding it and failing to prevent it.
That series of actions led to Murphy’s decision this spring. The judge dismissed the charges against Dalsing with prejudice, citing misconduct and prosecutorial vindictiveness.
The bar complaint and Penner’s whistleblower complaint shed light on internal discussions among prosecutors after Murphy’s decision. The complaint states that Penner and deputy prosecutor Kit Proctor, head of Lindquist’s appeals division, advised against appealing the Dalsing ruling.
The bar complaint also describes a conversation between Lindquist and an unnamed deputy prosecutor about an effort to persuade Murphy to change his mind — violating a legal rule that forbids lawyers from attempting to influence judges, the complaint contends.
“A DPA (deputy prosecuting attorney) 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.
Nevin confirmed to The News Tribune that Lindquist called him and asked about how to get a judge to change his mind. Guessing that Lindquist was referring to Murphy’s decision, Nevin declined to speak further with Lindquist.
The appeal in the Dalsing case starts a ticking clock at Division 2 of the Washington State Court of Appeals. The next steps include briefings from involved parties and a possible oral argument, but those scheduling decisions remain to be made.