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The Cost of Prosecutorial Mismanagement

By On

On November 6, Whatcom County voters will choose a new Prosecuting Attorney for the first time in 44 years. One candidate, Eric Richey, has been a criminal prosecutor in that office for his entire 25-year career. He seeks to follow his boss to the top spot, using the campaign slogan “Experience Matters.” It is more than years on the job that matters—Richey’s trial outcomes are crucial to citizens concerned about public safety. A review of Richey’s record shows an alarming number of errors for a criminal trial lawyer with his experience.

Up to 98 percent of Whatcom County criminal cases are resolved by plea agreements, with relatively few cases going to trial. It is troubling that recent cases tried by Richey—after his decades as a prosecutor—have been appealed and reversed or remanded for basic constitutional and procedural errors that should not happen after 25 years as a criminal prosecutor. Importantly, Prosecutors are not accountable for their trial errors. The cost of these appeals and new trials falls on taxpayers, victims, law enforcement, defendants and the justice system.

State v. Adrian Sassen Van Elsloo

On September 13, 2018, the Washington State Supreme Court reversed a case prosecuted by Richey and ordered a new trial for Adrian Sassen Van Elsloo, a notorious repeat offender. Sassen Van Elsloo’s criminal history stretches back to at least 2001, when he led Sheriff’s Deputies on a high-speed chase that ended in a crash that killed Deputy Matt Herzog. He was convicted of two felonies in that case, and was sentenced to four years in prison.

He has since been in and out of prison, and has repeatedly run from law enforcement. Most recently, in September 2012, Sassen Van Elsloo led police on another high-speed car chase. This time he bailed out mid-chase and ran, leaving a girlfriend behind in an SUV loaded with drugs and guns. Three months later, a Bellingham Police Officer spotted Sassen Van Elsloo driving a different car. He led that officer on yet another high-speed chase through two counties—running five cars off the road—before he was stopped and arrested. In 2014, a jury convicted Sassen Van Elsloo of nine felonies (for a total of 19 felony convictions to date). The judge sentenced him to 20 years.

Sassen Van Elsloo appealed and won a new trial from the Washington Supreme Court because of Richey’s midtrial request to dismiss the only seated juror that was a member of the Lummi Nation. During trial, the juror said she thought she recognized Sassen Van Elsloo’s main alibi witness—an employee of the Lummi Nation. Despite Richey’s repeated questioning of this juror, he could not point to evidence of bias—in fact Richey, defense counsel and the judge all agreed that the juror was not biased. Richey—in a mischaracterization of the applicable law—said that whether or not the witness could be fair was “kind of beside the point.” He moved for dismissal of the juror, not because of her bias, but because the witness was important to the defense. He said “it just didn’t feel fair” to keep her because “if the jurors believe [the defense witness] then it’s a big deal” and “that means my case goes nowhere.”

Defense counsel objected to Richey’s Motion to dismiss the juror. He argued that her interaction with the defense witness was minimal. Under Richey’s questioning, she had proven that she could be fair and impartial, and she was the only tribal member on the jury panel. Her connection with the defense witness was tenuous at best—but Richey pursued her dismissal “because of an entirely unsupported concern” that the juror, a member of the Lummi Nation, might believe testimony of a defense witness also affiliated with the Lummi Nation.

The Washington Supreme Court reversed the case because it was impermissible to dismiss the juror either on an assumption that she might favor a defense witness or—as the concurring opinion stated—the fact that she and the defense witness shared an affiliation with the same tribe. At most, the juror had expressed positive feelings toward the Lummi community. “Positive feelings about a community—in this case a tribal nation—without any proof of bias cannot be used as a reason for dismissing a seated juror. See RCW 2.36.110.” (Concurring opinion, p. 24). The improper dismissal “threatened the defendant’s constitutional rights to a jury trial, to jury unanimity, and to equal protection, as well as the juror’s own constitutional right to serve free from discrimination on the basis of tribal citizenship.”

Ultimately, it was solely dismissal of this juror that gave Sassen Van Elsloo—who would otherwise be in prison—a new trial.

State v. Zylstra

Another serious case pending appeal, arises from Richey’s prosecution of the tragic 2013 shooting death of a 23-year old young woman in her family’s backyard during a father’s day barbeque. The victim was killed by a stray bullet shot across the Nooksack River. Defendant Nickolas Zylstra appealed his conviction on second-degree manslaughter specifically because of Richey’s prosecutorial mismanagement and failure to produce key evidence to the defense until after the trial started in 2016.

Richey blamed the law enforcement agencies involved for his delayed production of multiple police, sheriff reports and 911 recordings—all of which existed at or near the time of the 2013 shooting. The withheld evidence undermined Richey’s case, and the Court stated that there was “no excuse” for Richey’s late disclosures that left the defense “hamstrung.”

After trial, though the Court denied Zylstra’s Motion to Dismiss, it ruled that Richey violated myriad discovery rules and court orders, and that his violations were material. The Court emphasized that the ruling “in no way excuses the State’s handling of this case.” Richey was—as the prosecutor—the manager of his case. Richey alone was responsible for gathering relevant documents and information, complying with rules of procedure, multiple defense discovery requests (from 2014) and repeated court orders compelling Richey to turn over that evidence.

It took nearly 3 years—with 14 continuances—to get this case to trial. Still, Richey waited until after trial started in 2016, to produce key pieces of evidence that existed from the time of the 2013 incident—handing the defense a compelling argument on appeal.

The outcome of this appeal is uncertain.

State v. Kayser

Richey was also reversed in a case against a 68-year-old resident of rural Whatcom County, based on the homeowner’s use of a shotgun in a claim of self-defense and defense of his 78-year-old wife against a trespasser on his property. Steven Kayser lives in rural Whatcom County at the end of a long driveway marked by a large “No Trespassing” sign. A male was spotted by Mr. Kayser’s wife looking through windows on the property. He eventually identified himself as a process server. Kayser was tried and convicted of assault in the second degree while armed with a deadly weapon, and was sentenced to 3 months plus 3 years for the firearm enhancement. Kayser appealed and his conviction was reversed. The appellate court granted him a new trial because of the state’s use of prejudicial evidence. The prosecutor eventually dismissed all charges.

Mr. Kayser has recently filed suit against the County, the Prosecuting Attorney and Eric Richey for, among other things, malicious prosecution.

A preventable history of costly appellate reversals

These are only three recent examples of cases tried by Richey, two of which have already resulted in reversals on appeal. A review of his records includes at least 21 reversals and/or remands on appeal. This after 25 years of practicing only criminal prosecution in Whatcom County—an area in which he should be expert. He now seeks to manage the largest law firm in the County (including the critical civil division), based mainly on his 25-year tenure prosecuting criminal cases. While experience matters, so does knowledge of and adherence to the law, fairness, and stewardship of taxpayer dollars.

Attached Files

About Juliette Daniels

Columnist • Member since May 11, 2017

Juliette is a licensed attorney in both Washington state and Texas. After spending 15 years working in litigation for two large Houston law firms, she moved to Bellingham in 2004 and eventually [...]

Comments by Readers

Sam Crawford

Oct 15, 2018

Mr. Richey has addressed these case several times on the campaign trail.

Howza ‘bout a review of the hundreds and hundreds of serious cases Deputy Prosecutor Richey has tried resulting in fair and just sentencing, including cases upheld on appeal? But that wouldn’t serve the purpose of this article, I get it.

Ah, the scrutiny of the campaign spotlight. Your opponents unfailingly attempt to make you look bad. I love democracy!

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Tip Johnson

Oct 15, 2018

So Richey may not have screwed up every case?  Small comfort. More telling is the 98% plea rate. This is one of the ways they have kept the jail overcrowded to justify their Labounty big jail boondoggle:  Heap on extra charges and file multiple continuances while citizens languish in county-admitted inhumane conditions, finally pleading to get out - with a record.  

This systematic denial of honest justice should be at least as disturbing as his prosecutorial errors - especially as it buttresses their dishonest Ferndale land grab and tax heist. 

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Heather Flaherty

Oct 15, 2018

Why are we not also scrutinizing James Erb’s record of prosecution? 

Almost all cases are appealed in criminal courts in Washington state and they almost always throw in prosecutorial misconduct as a reason for appeal.

Also, I’m surprised the NW Citizen does require disclosure when authors of articles are on the campaign team for certain candidates and using this platform to advance their campaign, rather than to actually write to further discussion on the issues.

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John Servais

Oct 15, 2018

My, Heather, it did not take you long to go for a smear.  Why do you not  comment on the facts in the article?  James Erb has posted a considerable bit of information about his criminal and civil prosecutions.  James Erb is not mentioned in this article.  This article is about Richey - and his very poor record and points out that experience is not a qualification by itself. 

Heather, might you reveal to the readers your involvement in the Richey campaign?  Was it not you who doctored a video of Erb speaking to make him look bad, and then posted it online?  Are you a part of the Richey team?  If you think it important, then pray inform us about yourself.  I don’t normally care and we welcome comments from those on campaigns or with advocacy groups without their needing to divulge their involvements. We assume commenters are involved citizens.  All perspectives are welcome on the facts or content of an article.  I’m surprised you would ask about another without explaining your involvement with the Richey campaign.  

All the writers on NW Citizen are citizen journalists.  As citizens we participate in our community.  We belong to groups and we advocate for causes.  We might doorbell for a candidate or issue, might contribute and might endorse.  But we are not paid by those groups nor do we write on topics that may impact our incomes.  If a writer is involved in a campaign, going to meetings, helping stragegize and make decisions, fund raising (as opposed to donating) then our writers do not write on a topic.  

Please comment on the article.  This is not Facebook.  

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Heather Flaherty

Oct 15, 2018

A smear is defined as this: damaging the reputation of (someone) by false accusations; slander.

Nowhere in my comment am I making false accusations or slandering anyone. And how quickly you turn to make your comment personal about me.

It is completely fair to ask about the record of James Erb when this article is so clearly campaigning against Eric Richey.

If you require your commenters to disclose their ties to community groups or campaigns, why wouldn’t you also require your writers to disclose? I would think authors of articles should be held to a higher standard if we are to believe credibility.

I am a big supporter of Eric Richey - and frankly, I’m tired of the misinformation being shared about him. 

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Dianne Foster

Oct 15, 2018

I notice that any criticism of Richey or praise for Erb  is followed by accusations of being on the “Erb team”,  as if democracy was a crime.   I guess that includes all of the Whatcom Dems,  40th LD and 42nd LD Dems who endorsed Erb.     Hmmm…. many of us are out there doorbelling for the whole slate,  including yes on the climate action bill 1631,  and no on the Pepsi-sponsored anti-soda tax.     The usual slam that Erb has no prosecutorial experience nullifies his background in domestic violence and child abuse prosecutions in a much larger venue.   But hey,   it’s hard for volunteers to counteract a paid machine.      As a PCO of 14 years,   I know that this too shall pass.    In the meantime,  fight like hell for the truth.

 

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John Servais

Oct 15, 2018

Heather, you appear adept at misreading.  Perhaps to stimulate long useless threads.  As I clearly wrote, we do not ask commenters to divulge their involvements.  The word is “not”. 

Our Mission statement might shed some light on all this.  To read it, click the “About” button at the top center of this page.  Here is a direct link to our Mission statement.  There are a couple other short articles under the About that may be of interest. 

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Tip Johnson

Oct 15, 2018

Hmmm.  Ms, Flaherty’s comments, as she asserts, may not attain the status of ‘smear’ but they come awfully darn close.  On the one hand she attempts to erode Erbs credentials whie, on the other, adding unsubstantiated frosting to Richey’s.   She asks - Why not Erb’s record?  Does he even have one? - suggesting he has none.  The facts are against her.  If she wants to make it an issue, she should research and write it!  NWCitizen, which appreciates diverse opinion,  would probably even publish it if her facts checked out. 

Alternatively, she claims (without specifics) that Richey has been doing a lot of good work, that he is merely the victim of a robust appeals process where “Almost all cases are appealed…” with “...prosecutorial misconduct as a reason.”  This is not the issue. I am sure she would not argue that appeals should be less available to the prosecuted.   At issue here is the fact that so many appeals against Richey’s cases are successful.  This costs taxpayers real money.

As for whether disclosure here was sufficient, I would simply note that if, as suggested by John Servais, Flaherty is working for Richey or against Erb, she is guilty of her own complaint - even while leveling it.  It remains one of this electoral season’s great mysteries as to why the Riveter’s Collective - supposedly “engaged in progressive political activism” - has chosen to support Richey over the ostensibly far more progressive candidate, Erb. There has been  a LOT of discussion around this non sequitur endorsement. 

For me, and I have researched the underlying issues, it boils down to this:  Big new jail v. Restorative Justice.  If you remain unconcerned over prosecutorial abuses and want to see an expensive, new Law & Order district in Ferndale, then stick with the status quo candidate from the prosecutor’s office.  Otherwise, vote Erb.

Disclosure: That’s my opinion! - one of the main things NWCitizen does.

 

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Heather Flaherty

Oct 15, 2018

“A review of his records includes at least 21 reversals and/or remands on appeal.”

21 out of how many, I’m curious?

The Riveter’s Collective had a robust endorsement process - including written responses to questionnaires. Eric Richey does not support a big new jail in Ferndale, for the record. He is excited about reform and ready to implement change. I encourage people to read what he wrote here: https://docs.google.com/document/d/1LspnoVD_Jbf-fTvETMF_srOOewHiaTER9sy1WCck_QE/edit 

This race is not as simple as big new jail v. restorative justice, in my opinion.

 

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Tip Johnson

Oct 15, 2018

And here is Erb’s

https://drive.google.com/drive/mobile/folders/13YWoAWSmbEiu7dd38VlSaiStWirJwvyz?usp=sharing

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Tim Paxton

Oct 16, 2018

Pleas are basicall extortion. 

If the Prosecutor sets bail too high for the poor person to deal with the case outside of the torture of our Jail, where is the 8th Amendment?    No excess bail… etc.   Did these people swear oath’s to support and uphold the Constitution? 

I would bet wealthy people don’t spend much time in our Jail.   

What is the use of Public Defender if 98% of the cases are pleas?  Can’t they lift a finger and get the 8th Amendment enforced around here?   Seems like the Defender’s office and Prosecutor’s office are the same.

Anyone who has years of experience run this kind of legal scam needs to be retired and spend more time with their family.

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Bob Burr

Oct 19, 2018

There is no doubt that plea bargains put a lot of innocent people in jail, a fact that Eric Richey refuses to face. Our Prosecutors, and most nationwide, like to heap on charges so that they may plea bargain them down to charges that entail jail time.  It is a horrible flaw in our system. With 97% of cases plea bargained in our County, and  court calendars still backed up, the courts would be overwhelmed if 6% rather than 3% went to trial. Our system is a criminal injustice system, not a criminal justice system. That said, I must defend our overburdened, understaffed public defenders office in Whatcom County.  Their case load is so great that, yes, they sometimes plea bargain cases—always with the consent of client—that they could have  won in court. This is particularly true with poor clients who have sat in jail, can take an Alford plea. and be sentenced to time served. My love for public defenders comes from direct knowledge of public defenders who really, really care of the defendents they represent. Cecily Hazelrigg-Hernandez who is running for our local Appellate Court is a classic example of a public defender (Skagit County) who is personally and emotionally involved with those she represents. I have friends in the Whatcom  County Public Defenders office that literally cry when they have to recommend plea bargains after laying it out to the jury trial probable outcomes to the client.

A case  in point involving a young friend of mine and more particularly a friend of my sons. He had a nasty divorce from a psychotic woman, but he was hardly an angel and likely contributed to herpsychosis. He drank far too much and had a particularly sick sense of humor. He had visitation rights with their 4+ year old daughter, but one night fell asleep from too much drink while visiting her. He fell asleep cuddling with the girl and when his ex woke up early in the morning she started screaming at him to get out and called the cops. Since he had been dropped off, he called my son who arrived about a minute after the cops. My son saw the squad cars and then saw his friend being led off in cuffs with his ex screaming “what did you do to ‘my’ daughter”?  As I said he has a very sick sense of humor. He said, “I raped her.”

Eric Richey was the prosecutor. There was no physical evidence of rape. The child’s testimony was back and forth depending whethjer she had been coached recently by her mommy. He was on on bail, and consistently and believably indicated that the charges were bogus up to and including the time when, after over a year, he told me he had accepted a plea bargain to serve a year, ten months in State prison rather than risk a jury trial which, if convicted, would put him there for ten years. I spoke on his behalf at the sentencing saying that I would without fear allow him to babysit my granddaughters. In the hall, after the sentencing and his being led off, the public defender was openly sobbing. She had spent much time with our friend and strongly believed in his innocence. Yet, she recommended the plea bargain, because juries have a natural  and strong bias towards guilt in child sex crime charges. And, ten years was too much to risk.

My own belief is that the presumption of innocence in most cases is bunk. I believe most juries carry in a presumption of guilt when law enforcement is testifying vs. the testimony of a “perp”.

It turned out well for my friend, fortunately. While he still maintains his innocence and must now register as a sex offender and is banned from Whatcom County, he says the 18 months in prison turned his life around. He no longer drinks and has established himself in Everett.

Eric is a Johnny come lately to  criminal justice reform. While he says that the drug and Mental illness courts were established during the McEachran/Richey regime, referrals to them have been far less than merited. While Eric and the City of Bellingham were saving the taxpayers a million dollars by going to home monitoring for those who could not make bail, Eric and the County continued to cost the county millions, while disrupting the lives of the less wealthy by keeping those who could not make bail in jail.

It is very clear that it is James Erb that would bring the type of reform necessary to Whatcom County. The Riveters who got all of the other endorsements right screwed up badly on Richey, Chances are that Richey will be our next Prosecutor. while a prefers Democrat along with Erb. All of the official Democratic Party organizations support Erb, and Erb alone. Richey has the support of the Riveters,  law enforcement which fights change, and of the vast majority of Republicans who paradoxically, because it would save a ton of money with better outcomes, do not want reform.

Please4 work your asses off  for James over the next few weeks. He has an uphill battle to prevail over the entrenched interests that have dominated the criminal justice system here for the past 44 years.

 

 

 

 

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