County prosecutor plays cruel games

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Thu, Jun 25, 2015, 6:00 pm  //  John Servais

You can see the stump inside Luba's property line. When she tried to stop the trespassing logger, she was arrested and jailed.

First posted at 7:51 am.  See 6 pm update half way down.

In 2011, Luba Pekisheva was convicted in Whatcom County District Court by judge Elich of assault and theft.  In truth, she probably committed neither. But Pekisheva had defied a good ol' boy from the county and our Whatcom County justice system - judges, prosecutors and public defenders - seems to have shown extra zeal in convicting Pekisheva and making it stick. 

I’ve been trying to follow this crazy case for several years now, and it appears the county justice system has wasted a lot of taxpayer dollars just to harass and prove to one young woman that she is helpless in the face of local prosecutors.  Such zeal should be for real crimes - not someone standing their ground on their own residential property.

It started when county resident Chris Hatch came to cut trees on her property in the Paradise area back in November 2009. Because of some unclear county property filings, there was supposedly an 8 foot wide public green strip next to her property - and he was cutting trees on that public green strip.  Legally the green strip probably belongs to her.  Pekisheva tried to keep him from cutting the trees and somehow quickly found herself arrested and in jail. Hatch proceeded to cut the trees - but she certainly did not assault or steal from him.  And he cut at least one fine tree that was clearly on her property.  See photo. 

Now, after five years of court proceedings, a lot of taxpayer money has been spent to keep Pekisheva convicted.  She was sentenced five years ago and served her sentence.  In her effort to clear her name and get the conviction reversed, she has represented herself these five years and appealed through the county courts and up to the state Supreme Court - which rejected her appeal this May.

And so it was a surprise when the prosecutor's office sent her notice of a hearing for an “Imposition of Sentence" for Thursday, June 25.  A couple weeks ago, Pekisheva went to ask the court clerks and the prosecutor if there was an error.  It seemed like she was being sentenced a second time.  Two of us went with her as witnesses.  The short answer is, no one would tell her a thing.  The prosecutor of her case, Warren Page, was in his office but would not see her - sending out cryptic messages via a clerk that he had nothing to tell her.  The court clerks also would not tell her anything.

It seemed to me they were enjoying making her nervous and scared.  She does not know if she will be put in handcuffs and led to jail on June 25.  When asked what they intended to say, she was told they did not know what she would say, so they would not tell her what the prosecutor intended to say.  To this adult, it appeared to be teenage game-playing.  Someone could have either admitted the notice was worded wrongly or could have explained to Pekisheva what was about to happen.  No one would. 

So here is where we are now.  I’ve asked around and it seems the courts need to have a hearing in order to close the legal process for her now that her appeals have been denied.  This is not a sentencing hearing and the notice is mistakenly labeled that way - either to make her nervous or as a result of some incompetent prosecuting attorney handling it.

It should have been labeled a “Post Mandate Review” or similar.  Not an imposition of sentence.

I’ll be at the hearing.  If the court says the notice was worded incorrectly by mistake it will be a lie.  The court and prosecutor were made fully aware of this wording two weeks ago.  Pekisheva spent a couple hours in the courthouse going from office to office seeking clarification.  No one would tell her anything and all knew of the wording.

Yes, I’ll follow up this article after the hearing.  And perhaps we will look further into Pekisheva's case.  It appears our prosecutor, Dave McEachran, enjoys making innocent people suffer.  And suffer for years.  At a huge waste of our tax dollars for an incident that inconvenienced a good ol' boy from the rural county who went around looking for trees that would be easy to cut and sell.  She did not want him to cut her trees.

Oh, and that theft conviction.  She grabbed the guy's chain saw and hid it - and then called the sheriff's office.  When the deputy showed up, she gave it to him - and he promptly arrested her for theft.    

Update - 6 pm

At Luba Pekisheva’s hearing this afternoon, Judge Elich called her to the front of the courtroom just as the prosecuting attorney handed her an order to sign.  This order was to vacate the guilty verdict and to dismiss the charges.  The judge immediately pressured her to sign.  When she started to ask a question, he sharply and loudly cut her off.  He said she could not say anything.  Nothing. She could sign the order or not - but he was done with her. 

The order seems good on the surface - but we need some legal advice on what it might mean.  Pekisheva wants to clear her name and her conviction.  While this order seems to dismiss her case, it may also prevent her from seeking a full reversal of her record. She may still face problems flying or traveling to another country.  Legally she may now be prevented from suing for malice of prosecution.  The judge did not give her time nor help.  It was an ambush by district court judge Elich.

Warren Page, assistant chief criminal deputy prosecutor for the county, wrote the order but he was not in court and had a young attorney present it.  It says, “Ordered, adjudged and decreed, that the Jury’s guilty verdict in the above referenced matter is vacated, a not guilty plea is entered and the charges dismissed.”

It appears our local justice system is saying to her, “You are innocent and we are declaring our six years of prosecution and harassment of you to be for nothing.” The Whatcom County prosecutor, Dave McEachran, the district courts and the superior courts have all maintained for six years that Pekisheva was guilty and put her through every legal torture they could.  Now that the legal process is exhausted, they tell her she is innocent.  They no doubt wasted tens of thousands of our tax dollars and cost her five years of her life - all for nothing.  All for original charges where no one was even slightly hurt and nothing was stolen. 

To this observer, it was clear the court had no respect for Pekisheva.  I understand they are tired of her.  She refused to go quietly in the night with their trumped up charges and the unfair court case against her. She dared to challenge the august men in their chambers.  She was to be taught a lesson. 

The prosecutor could have, and should have, provided Pekisheva with a copy of the order weeks ago.  She could have sought legal help on it or researched its implications.  She could have come to court prepared.  But it was obvious that Judge Elich wanted this hearing to last about one minute and did not want Pekisheva to say a word - not a word.  She could sign or not - and suffer the consequences of whichever she choose - with no time to read and consider.  It was not a fair process.  It was official bullying. 

After a half hour consideration outside the courtroom, Luba signed the order - but also wrote in her protest of the language and process on the face of the order.  We shall see if Elich signs it.

Perhaps some readers can add perspective.  This is citizen journalism - which means we can all contribute our expertise toward explaining issues.  I’m not an attorney - but have been to several of these hearings with Pekisheva.  My concern is a justice system that maliciously trashes the lives of innocent people and we may have that here in Whatcom County. 

If anyone wants to look up the case, it is State of Washington vs Lyubov Pekisheva.  PA11761

Tip Johnson  //  Thu, Jun 25, 2015, 7:33 pm

Looks like a good outcome, but a very, very bad process. Corrupt as in “debased in character; depraved; perverted; wicked; evil. Probably find it illegal if anyone would bother to investigate.  Don’t blame me.  I voted for the dog.

Ryan M. Ferris  //  Fri, Jun 26, 2015, 5:58 am

If any one finds a linked cached or not to this case ....  It looks to me as is the web has been cleansed.

Dick Conoboy  //  Fri, Jun 26, 2015, 6:57 am

And Kafka smiles…

Luba Pekisheva  //  Sun, Jun 28, 2015, 11:39 am

First up, thank you all for your support and concern/ condolences, but there hasn’t been an outcome (at the soonest, that would come after the Court of Appeals decides on my Personal Restraint Petition), not even with the dismissal fiasco. No order has been signed by Elich yet; I haven’t seen the new order the prosecutor will prepare, acc. to the docket.

The order Page put before Elich means only that, rather than being vindictive, the pros. office had extended me the benefit of the deferred sentence, I bet, for their own strategic advantage.
To prevail on a PRP, the person has to be restrained, and the restraint, unlawful.
If Elich signs the [new] order to vacate, it would take away the restraint of the sentence, but not the much greater restraint (limitation on your liberty) of not having fundamental legal rights that even murderers and child rapists have, such as, the right not to be found guilty and punished until the prosecution proves you guilty beyond a reasonable doubt after a fair trial before an impartial tribunal (jury OR judge).

The restraint of a sentence is nothing compared to this. Any sentence will be over one day; any misdemeanor sentence cannot last more than a year per charge. This denial of basic human rights, by all WA courts that had a chance to address the miscarriage of justice thus far, but chose not to even pretend to address it (Uhrig, Supreme Ct Comm. Pierce, Chief Justice Madsen), will last the rest of my life. I’m refusing to submit to the illegality of it all, and will continue dealing with the consequences, because I’ve grown to understand that the lack of judicial integrity is a serious and systemic crisis. When the judge takes up being the prosecutor, any one can be convicted of anything, if that is what the prosecutor wants. My conscience makes it impossible for me to be complicit in this corruption. Be it by inaction, or ineffective action.

This price I continue to pay for refusing to relinquish my rights is what Elich can’t get; this restraint no deferred sentence can take away.

Kafka may keep smiling, but his smile fixes nothing; we’re all in the same boat when judges refuse to do their job. If you’re ever wrongfully arrested (which is not entirely w/in your control), the prosecutor will seek, and find, a way to get you wrongfully convicted, so that the risk of you suing the County is eliminated. How can anyone be sure the same denial of due process won’t happen to you, or someone you care about?

Dismissal/vacation, after the probation period passes w/o new charges, is provided to any convicted criminal who has been “good”. It does not in any way mean the court recognizes your innocence, or that your work to have your wrongful conviction reversed has been for nothing. In my case, it shows I have come too close for comfort, became too mature an appellate practitioner, built too much credibility, now have a much more attainable remedy than discretionary review in the Supreme Ct, after my eye condition made me miss the chance to file for it in the Court of Appeals, and Elich and Page naively want to tell me, It’s over. I should internalize their abuse and let myself be tricked into thinking abuse and disregard is all I’ll ever get.
And that is way too soon to tell.

John, can you please use whatever process works for you to put in links to documents and let people see for themselves? I can make another comment to include the links.

Bob Burr  //  Tue, Jun 30, 2015, 3:26 am

The young man who was maliciously persecuted and prosecuted by the Sherriff’s office and County Prosecutor’s Office for starting a human microphone at a County Council meeting rather than using the normal public comments microphone, sued the County and received a sizable settlement. It seems that the county will never learn. It’s not just the money wasted in charging and prosecuting, but also the money spent in settling the lawsuits. The system is broken.

County prosecutor plays cruel games

Thu, Jun 25, 2015, 6:00 pm  //  John Servais

Updated at 6 pm. Our county justice system has spent 6 years trying to teach Luba Pekisheva that she should not defend herself. Justice denied and miscarried.

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