Lindquist gives up appeal of vindictiveness ruling

Pierce County Prosecutor Mark Lindquist’s office has given up the fight against a judge’s March 31 finding of prosecutorial vindictiveness in a long-running sex-abuse case.

The decision, a motion filed Monday with the Washington State Court of Appeals, withdraws the prosecutor’s appeal of a lower court’s dismissal of charges against former Longbranch resident Lynn Dalsing.

Thus, the finding of vindictiveness by Lindquist’s office becomes legally permanent.

The appeal was shelved on the same day that U.S. District Court Judge Benjamin Settle allowed a civil-rights lawsuit filed by Dalsing against Lindquist and deputy prosecutor Jared Ausserer to go forward, potentially exposing both men to personal liability, though such outcomes are anything but certain.

The combination of circumstances opens the door to possible settlement of a second, long-running false-arrest lawsuit filed by Dalsing in 2012, and withdrawal of the federal lawsuit. Pierce County has spent $303,208 to defend those actions, according to public records.

Settlement talks ended without resolution this fall, according to court records. Monday’s legal moves appear to change that dynamic, though no one associated with the cases would say so publicly.

Some, but not all of the controversies surrounding Lindquist’s office lead back to the Dalsing case, which has spawned three lawsuits, a complaint to the state bar association and an active recall campaign.

Prosecutors charged Dalsing in 2014 with multiple counts of child rape and child molestation, labeling her as an accomplice to her husband’s sexual assaults of the couple’s daughter and two young friends.

It was the second time Dalsing faced sex crime charges based on the same underlying incidents. Prosecutors charged her with child molestation in 2010, based on a child pornography photo later proved to have nothing to do with her.

Prosecutors dismissed that charge in July 2011. Dalsing spent seven months in jail while her defense attorney tried to obtain a copy of the photo. She subsequently sued the county for false arrest and malicious prosecution.

Meanwhile, her husband, Michael Dalsing, and his friend William Maes pleaded guilty to child-rape charges. Both men are serving lengthy prison sentences.

In March, Superior Court Judge Ed Murphy dismissed the new child-rape charges against Lynn Dalsing, citing misconduct due to prosecutorial vindictiveness. While prosecutors cited alleged new evidence, Murphy found it wasn’t new. He sided with Dalsing’s defense attorneys, who argued that prosecutors filed new charges to gain an advantage in the false-arrest lawsuit.

Lindquist’s office appealed that decision in June, and withdrew the appeal Monday.

The News Tribune sought comment from Lindquist on Tuesday; he did not respond, though he has spoken about the case in the past and asserted that Dalsing is guilty.

Instead, a reply came from deputy prosecutor Kathleen Proctor, who filed the motion to withdraw the appeal.

Proctor offered a statement taken from the motion she filed with the court.

“The families of the three young victims in this case have previously indicated a desire to move on and heal from the impact of the sexual abuse inflicted upon them. There have been several attempts by members of my office to contact the victims’ families for their input on whether to pursue this appeal, but all have been unsuccessful.

“Though I believe the appeal has merit, the appellate process can take years. Should the State succeed in overturning the trial court’s dismissal, the victims would face having to come into court for trial and relive their victimization. So after assessing the potential negative impact a successful appeal could have on the victims, my office has decided not to pursue the appeal.”

Proctor did not mention the federal ruling issued the same day in Dalsing’s civil rights lawsuit. That action, filed this summer, accused Lindquist and Ausserer of conspiring to violate Dalsing’s civil rights by filing the new charges against her.

The suit cites the vindictiveness ruling, among other circumstances. It also names the prosecutors in their personal capacities.

The federal ruling rejected a motion to dismiss the case filed by Seattle attorney Stewart Estes, who represents Lindquist and Ausserer, as well as the county.

The arguments were complicated; Estes contended that Lindquist and Ausserer enjoyed absolute immunity in their role as prosecutors. Dalsing’s attorney, Fred Diamondstone, countered that Ausserer acted as a witness and an investigator, not solely a prosecutor, when he attested to evidence against Dalsing, and that Lindquist controlled Ausserer’s actions.

Judge Settle’s ruling left openings for further debate.

“Defendants have failed to establish that Ausserer did not act as a complaining witness, as alleged in the complaint,” he wrote.

In another section of the ruling, he added, “At the very least, Defendants bear the burden and, at this time, have failed to show that Lindquist, in his official capacity, and the County are entitled to a dismissal.”

Asked for comment Tuesday, Estes replied with a short statement.

“Yesterday, Judge Settle rejected the bulk of Ms. Dalsing’s claims. We are confident that the Court will dismiss the remaining claims when we file our summary judgment motion in the near future.”

Diamondstone offered a shorter statement:

“Judge Settle’s ruling speaks for itself.”

This story was originally published November 24, 2015 at 10:36 AM with the headline "Lindquist gives up appeal of vindictiveness ruling."