Karen Peterson

Karen Peterson: Prosecutors, not TNT, doing the misleading

Let me get this straight. Now The News Tribune is to blame for the hailstorm of trouble that has befallen Pierce County Prosecutor Mark Lindquist and some of his top deputies?

On one hand, that’s unbelievable. On the other hand, it falls right in line with the way this prosecutor has conducted business almost since the day we started covering him.

He and his staff are never to be questioned. It’s always someone else’s fault.

Apparently now it’s our turn.

Last Sunday, deputy prosecuting attorney Jared Ausserer wrote a 449-word post on Facebook — later “liked” and shared by Lindquist — saying The News Tribune is misleading the public and attacking the integrity of the prosecutor’s office in our coverage of the Lynn Dalsing case. The case involves the mother of an abused daughter.

Ausserer said we “intentionally withheld the facts” supporting prosecutors’ decisions.

While that’s not true, the post played prominently on a new Facebook group supporting the prosecutor. Within hours of the group going public Wednesday, 556 people appeared as members, with 238 of them listed as “added by Mark Lindquist.” Some “members” said later they were added without permission. On Friday, the post had disappeared.

Click to enlarge:

CAPTION 
This screen grab shows the Facebook post made by deputy prosecuting attorney Jared Ausserer on Aug. 9, 2015, which was later deleted.

Lindquist faces a civil lawsuit, a federal lawsuit, two whistleblower complaints, a state bar complaint and a court-approved recall effort. Much of their basis involves the Dalsing case.

To recap, Dalsing is a Pierce County woman charged with child molestation in 2010. Her husband and another man were convicted of raping the couple’s child and her friends.

Charges against Lynn Dalsing were dismissed in 2011 after the county admitted the photo at the crux of their case was not of her.

She sued Pierce County in 2012 for false arrest and malicious prosecution. In 2014, the county filed a second round of charges, including child rape, citing alleged new evidence.

In March, Superior Court Judge Edmund Murphy said that evidence wasn’t new and threw out the charges, citing prosecutorial vindictiveness.

We have written extensively and fairly on all of those matters.

Ordinarily, I would not write a nearly full-page column explaining our news-gathering process and relationship with a source. However, the prosecutor’s office decided last week to publicly accuse this newspaper and its individual staff members of misleading the public and withholding information.

We will not let that stand.

PROSECUTOR PRESSURE

We have heard the prosecutor’s criticisms before. Over and over, he and his top deputies have accused us of bias, of having an agenda, of being unprofessional, of lacking ethics and of writing about them only to sell papers. They said the fact that their office leads the state in findings of prosecutorial misconduct was not newsworthy.

(For the record, the TNT doesn’t sell more papers when Lindquist’s name is at the top.)

Since he took office in 2009, Lindquist has been far quicker than any public official we deal with to pick up the phone and complain about a story.

One call even became newsworthy.

In 2011, we wrote about a settlement between sheriff’s Deputy Glenda Nissen and Pierce County, after she accused Lindquist of retaliating against her for political reasons.

Our online story quickly drew a call from the county spokesman. He said Lindquist thought we should remove a sentence of background material.

We get calls like that occasionally, and we always consider them. In this case, we made the change.

(The change has since become part of another Lindquist case before the Washington State Supreme Court regarding disclosure of texts from his personal cellphone.)

About this time, Lindquist began requesting meetings to go over our stories. We honored those requests, as we would from any source, and responded to concerns he raised.

But since we published the first Dalsing story on June 22, 2014, he has been relentless in his demands for changes in a way I’ve encountered from no other source in my 30 years in this business.

Lindquist began calling TNT staff members shortly after that first story published, saying it contained factual errors. I called to get the details so we could quickly make necessary corrections, but was told that wasn’t necessary.

Instead, Lindquist wanted to meet with us a week later. We agreed.

He came with four deputy prosecutors, including Ausserer, plus the sheriff and the sheriff’s spokesman.

For two hours, we went over the story line by line, noting Lindquist’s concerns. He and his staff came armed with documentation. Clearly, they spent the previous week preparing.

Out of fairness, we later met with defense attorneys, noting their concerns as well.

Our staff spent five hours going through the prosecutor’s 29 complaints and agreed with them on two points. First, that a sheriff’s deputy wasn’t a named party in the civil case we cited, legally speaking. Second, we told Lindquist we would publish in full a quote we had edited down.

Both prosecutors and defenders would have preferred more content in our story representing their perspectives.

But after going through the review, talking to more people and looking at more documents, we were more assured than ever that this important accountability story fairly represented what happened.

The pattern with Lindquist continued as we followed the Dalsing proceedings, with hourlong phone calls to the reporter and editors, sometimes during work hours, sometimes late at night.

This was no longer about correcting the record, but shaping it.

He asked for another meeting in March to complain about our story previewing the hearing with Judge Murphy that led to the finding of vindictive prosecution.

We worked off a 15-point list of complaints from Ausserer, and a second sheet labeled “LYNN DALSING (ALL FACTS KNOWN TO SEAN ROBINSON PRIOR TO PUBLISHING).” They were emailed by deputy prosecutor Dawn Farina.

Because of the number of misstatements and half-truths the complaints contained, we told Lindquist we wouldn’t again go through this micro-editing process. Even he conceded erroneous points made in his staff’s memos.

MANAGING OUR RELATIONSHIP

We had to establish internal rules for dealing with Lindquist because he was taking so much of our staff time.

He was welcome to talk to any staffer about stories, but he had to come directly to me with concerns or complaints.

We would no longer play the game of calling him for a comment only to have him assign a deputy prosecutor to call us with a response.

We would consider his requests and make necessary changes, but limited the time we spent going over and over the same points.

RELATIONSHIP BECOMES NEWS

In this rare case, our news gathering process with a particular subject of coverage has itself become newsworthy.

One of the whistleblower complaints against Lindquist said he “expends inordinate public resources to include DPA (deputy prosecuting attorney) involvement in efforts to persuade favorable media coverage in a manner that best promotes Lindquist or his version of events, and disparages his adversaries.”

His continued pressing to influence our coverage might not violate the law, and anyone who is the subject of contentious coverage is welcome to be heard by editors before or after publication. But the degree and persistence of his time spent on his image may concern the citizens who pay his salary. Prosecutors are spending a lot of time doing this on the clock.

The state bar complaint contends that comments Lindquist made to the media violate rules of professional conduct.

Those rules, set by the state courts, say in part that prosecutors and other lawyers should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” They should stay away from offering “any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.”

We published this quote from Lindquist in a June 30 story: “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.”

As with quotes made by deputy prosecutors in other stories, it was an allegation stated as a fact. And this one came after charges against Dalsing were dismissed.

We have heard the prosecutor and his deputies say some judges just don’t get it, that an individual civil attorney is certifiably crazy, and that state Supreme Court justices are too busy working their own political agendas.

REPORTING THEIR SIDE

Attached to Ausserer’s Facebook post last week was an affidavit citing his reasons for charging Dalsing a second time. He said “none of this information was contained in any article.”

Like so many other criticisms of our work by Lindquist’s office, that’s simply not true.

We have detailed prosecutors’ allegations against Dalsing in eight major stories over the past 14 months, sometimes more than once in the same story.

In our initial story in June 2014, we described what prosecutors and documents said about her:

She said she caught (her husband) taking photographs once and tried to stop him. She admitted knowing he had been convicted of a sex offense …

… The initial police report from 2010 refers to an interview with her daughter, who reportedly said, “her mother knew what was going on and even saw it happen. She tried to stop it but it didn’t work.”

… Prosecutors also relied on statements from Maes, the co-defendant in the original criminal case. Maes told stories he said he’d heard from Michael Dalsing: that Lynn had participated in abuse of the daughter, and that he’d seen an obscene picture of Lynn with her child. No such photo appears in evidence records. Maes also said he knew Lynn Dalsing was the woman in the picture because he recognized her vagina.

… The charging decision came from Ausserer, the deputy prosecutor who had taken charge of the criminal case.

“(Dalsing) knows that she’s not allowed to have minors in contact with her husband, who’s a sex offender,” he said. “She knew it was happening, and facilitated it. I think anybody who reads the probable cause statement can see that.”

Here’s even more on the charges from a March 31 story:

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.

So yes, we have shared the prosecution’s version of events with our readers over and over again.

OTHERS TAKE ACTION

The real problem for Lindquist’s office lies not with The News Tribune, but with an increasing number of judges from the Superior Court level up through the state Supreme Court.

They had full access to prosecutors’ versions of the case. Yet, one after another they found fault with prosecutors’ actions against Lynn Dalsing.

It wasn’t the TNT that questioned Ausserer’s credibility in open court. King County Superior Court Judge Beth Andrus did that on May 8, 2013:

Mr. Ausserer appears to have made certain representations in prior declarations that now seem inconsistent with what he’s saying in his current declaration, and you know from a lawyer’s perspective that when you have two inconsistent declarations, it does reflect on someone’s credibility.

We reported that.

The TNT did not dismiss the Dalsing case because of prosecutorial vindictiveness. That was done by Judge Murphy, previously a veteran Pierce County prosecutor. We reported the ruling.

The TNT did not approve a petition to recall Lindquist. Kitsap County Superior Court Judge Jay Roof did, finding legal and factual sufficiency for the allegation that the prosecutor’s office engaged in a vindictive prosecution of Dalsing. We reported that.

Beyond the judges, the TNT didn’t file the whistleblower or bar complaints against Lindquist, alleging misconduct and retaliation. Those were filed by veteran attorneys from within his office, including his chief criminal deputy. We reported that.

The TNT didn’t file civil and federal lawsuits that reference the vindictiveness ruling and Ausserer’s actions. Dalsing’s attorneys did that. We reported it.

In each case, we also reported the prosecutor’s responses.

PROTECTING THE CHILDREN

A Facebook commenter supporting the prosecutors wrote last week: “Where is the justice….for the kids...does the news tribune care about that…?????”

Yes, we do.

Lynn Dalsing is not a sympathetic figure. What happened to children in her home was horrible.

But before you allow prosecutors to declare themselves the protectors of these children, consider two things.

First, they made little effort to pursue Lynn Dalsing for years after the initial charges were dismissed. Judge Murphy wrote it this way:

The State not only did not believe this information justified criminal charges in July 2011, it allowed the criminal investigation to lie dormant for almost twenty-two months. It then took another eleven months after the investigation was re-opened before the new charges were filed. The State was not interested in this information until after the civil lawsuit was filed by the Defendant against Pierce County.

Second, after Murphy found the actions of prosecutors to be “vindictive,” he dismissed the case with prejudice, meaning that as it sits now — no matter how much evidence prosecutors believe they have against Dalsing — they can never present it against her in court.

Because of prosecutors’ misconduct, found by judge after judge, the people don’t get to try Dalsing. That, too, is news. We reported it.

We have heard directly and repeatedly from prosecutors their frustration that we don’t write stories as they would write them.

But for them to say, as Ausserer did in a subsequent Facebook comment, that the TNT had “no factual basis for their narrative”?

Please.

Lindquist’s argument — and his troubles — are with the judges, the law and ultimately the people of Pierce County, not with us.

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