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Caught In The Whatcom Court System

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We have an interesting story here about Luba Pekisheva, a young local woman who seems to have been railroaded by our county court system. Learning the story has not been easy and it looks like this article may be the first of several. As I continue to look into it, I am open to discovering that my concerns are just misunderstandings. But after poking around at this for five months, I am becoming convinced that our local judges, court clerks, public defenders and the prosecutor’s office have all worked together to criminalize an innocent person.

It started back in 2009 when a good ol' boy from the county came by Luba’s house north of Kendall and started cutting down trees. She thought he was cutting trees on her property - and she may well have been right - but that is not the issue. She was digging in her yard at the time, saw him, and went down the path to block his entrance. He brushed by her despite her demands that he get off her property. At some point, he set down his chainsaw and she grabbed it, hiding it behind her home. She promptly called the sheriff.

A deputy came. He asked her to give him the saw, but she wanted an assurance it would not just be given back to the guy so he could continue cutting trees. The deputy said he could not say that and insisted she give him the saw. She gave it to him and he promptly arrested her for theft of the saw. The tree cutter then told the deputy that Luba had hit him with her shovel. So the deputy also charged her with assault, and off she went to jail.

At this point our legal system kicked in and Luba was prosecuted and convicted of two gross demeanors - theft and assault - by Judge Elich. The victim - the guy with the chainsaw - admitted under questioning that he was unhurt and had no injuries; Luba denied hitting him. It was “he said/she said” with no witnesses or evidence. But Luba was found guilty; guilty of stealing the chain saw - even though she was trying to protect her property, even though she was the one who called the sheriff, even though she returned the saw. She now has a criminal misdemeanor on her record for life. Unless an appeal would overturn it.

So, in early 2010 she started an appeal in Superior Court to the District Court decision and process. For the past three years she has been given the run around by court clerks, judges and prosecutors: her files have been lost; it has taken over a year for files to be transmitted from the 4th floor District Court to the 3rd floor Superior Court. It appears Judge Elich has effectively controlled which files the District Court clerk would transmit to the Superior Court. And three years later, Luba is still trying to make her appeal.

A couple months ago, I went with Luba to the District Court Clerk office and heard the clerk say that “the judge” was still reviewing which files from her case would be transferred to Superior Court for her appeal. The clerk was waiting for his “instructions” on which files to transfer and which to hold. So I have a question for you legal readers: Is it normal for a judge to review and control which files may be used in the appeal of a decision by the same judge?

Luba Pekisheva has represented herself throughout this process. She was assigned a public defender in the beginning but she felt he was of no use as he tried to prevent her from entering evidence in defense of herself. She had him put on standby. No local attorney would take Luba's case. My opinion of her is that she is very smart, and determined to get the facts of her case considered by an impartial judge. She is not interested in being casually criminalized by our local county good old boy system of justice.

On Thursday, May 23, Luba received notice in the mail that oral arguments for her appeal of the District Court conviction was scheduled for 9 a.m. on Wednesday, May 29, in Superior Court. But Luba's final reply brief was not due in Superior Court until Tuesday, May 28. So the court system was allowing her one day between filing her brief and appearing in court. The law requires she must be allowed a minimum of 7 days.

I went to the prosecutor’s office on Thursday, May 23, to learn more. I had three questions: Is it normal to schedule orals a day after the brief deadline? Is a one-week notice normal? And why is this suddenly happening so fast?

They did not want to tell me anything. Who are you? I gave my name. Why do you want to know? I'm a citizen and am curious about this case. I was told there was no one available to talk with me. They had more prying questions. Someone will call you - but previous experience told me no one would ever call. I insisted on waiting. A clerk came out and kept trying to tell me they were busy, that Luba was responsible for all this delaying, that there was a meeting going on right then about Luba. And when I kept coming back to my three questions, I was told how under staffed the office was. I said I was not interested in their problems - merely the three questions. Again - who was I? I was told I was rude. No, not rude - just asking three simple questions. If they cannot answer them, then they can read about it on NWCitizen in a couple days. Boom. The clerk told me everything she’d said was off the record. And so, no name here. She promptly left, again saying I was rude and that she was not authorized to answer my questions. (So why did she come out?)

I asked the receptionist who else could answer the questions. Well, Cathy Walker had set the dates but she was in the meeting about Luba. I would wait. They again offered a phone call. I declined. After a while the first clerk came back. This time she tried to answer my questions. She cited the dates of the mailings and said Luba was already days late with her reply brief - and was in error about it being due May 28. We discussed - with me assuring them repeatedly that I had no desire to argue and was only seeking the answers to those three questions. It got technical and they provided dates to show they were within the law on their scheduling. I never did learn what was normal.

Next, I phoned and informed Luba about what I had learned. I suggested perhaps she was wrong and was late with her reply brief. And, voila. Luba had kept the postmarked envelopes with her notices. The postmarked dates were days after the mailing dates the prosecutor’s office had given me. In truth, Luba's brief was due the 28th. The soonest the oral arguments could be heard, by law, would be June 5.

Let me note that the prosecutor's office was acting on false information - their own information was wrong. They were sure of themselves but they were dead wrong about the facts. Luba says this has happened repeatedly over the years - and until I stepped in she had been ignored and forced to live with the violations of due process by the prosecutor’s office, by the court clerks and by the judges. I give credence to her based on my experience with them. They were confused and arrogant. And they were wrong. Perhaps Luba has been railroaded into her conviction when actually, she is innocent.

On Friday, May 24, Luba received notice her oral argument date had been cancelled and would be rescheduled for a later date. They have now set her oral argument date for June 18. She credits my visit for that concession, repeating that she has been bounced around for three years. And after watching their confusion during my visit, I'm inclined to believe her.

So this is the first of what may be several articles on this case. I have videos of court hearings. I have access to court records. But mostly, I'm curious about how the court system has handled Luba's case. Have our courts casually criminalized an innocent woman, one who has no connections and little money, simply because she dared to assert her innocence and refused to go quietly? Why have we spent thousands of our tax dollars to criminalize this person? Is it because she stood up to one of our county good ol' boys?

Judge Elich convicted her and Judge Uhrig is deep into this confusion. It appears that Judges Mura and Snyder have become involved in this mess. So this article is a start. Let's reveal the full story of this four-year process. My personal experience, and the records and evidence I have seen are enough to justify this first article. I plan to attend the court hearings and look into the records. I will talk to people. I will keep you posted.

About John Servais

Citizen Journalist and Editor • Fairhaven, Washington USA • Member since Feb 26, 2008

John started Northwest Citizen in 1995 to inform fellow citizens of serious local political issues that the Bellingham Herald was ignoring. With the help of donors from the beginning, he has [...]

Comments by Readers

Luba Pekisheva

May 10, 2015

This story gets downright Kafkaesque and more relevant, since it reveals that not just our deputies, but our prosecutors and judges had neither attempted to sort out the guilty from the innocent, nor even followed the letter of the law. This same unchecked and unbalanced legal system, on top of all the other ”law” and “justice” expenditures that eat up our general fund, is now asking us to fund an oversize jail, which, once built, can be counted on to be filled to capacity, but with whom?

First up, there is no “maybe” [she’s innocent]. I am innocent; over these long 5 years, no judge or prosecutor could refute my facts or arguments for actual innocence and reversal of Elich’s unconstitutional conviction. There had been no happy ending to this story as of May 2015, but it’s far from over. Missing my chance to get into the Court of Appeals due to a medical eye condition, I took it to the Supreme Court, where no one had the integrity to correct a conviction pronounced by a judge who made up an admission, though the technicalities allowed it and no one, even the prosecutor, could justify Elich’s and Uhrig’s actions, or even address them directly. But in my quest for the miracle of justice, I’ve seen so much that I will be writing a series of articles, as I’ve promised a long time ago, where I will name names and cases, and hyperlink to the evidence and court documents (which also proves every fact in this comment).

I’m not about to hold back, since all of our rights mean nothing when judges flat-out make things up to get the outcome they want, and I, for a change, have the time to write something besides legal papers (I have a whole year before the deadline to go back to the Court of Appeals). For today, I’m posting a more precise rendition of the factual narrative in John’s initial article (I try to maintain his style; the following paragraphs are almost the same, as they were when I e-mailed them to him around 6/1/13).

It started back in 2009. More than a 100 properties in the mostly low income community of Paradise in Kendall had a 4 acre greenbelt adjoining them. The greenbelt was abandoned, officially, in 1999 and came with arcane title issues, such as having an illegal reversion clause for a foundation. A good ol’ boy from Acme,  who no longer could get bonding for his logging projects, had turned it into a business opportunity. On the good ol’ boy’s expert advice, his good ol’ girl buddy handed some money to Isenhart for the weirdly illegal title and all it came with.

Unless they bought the pieces of greenbelt from him now, the good ol’ boy’d plow through other folks driveways and properties, grabbing the trees that couldn’t get out of his way fast enough, get to the greenbelt, get it nice and clear-cut, and then sell the clear-cut pieces. He would sub-divide it all by himself. He had qualifications, having previously gotten in trouble for practicing law w/o a license, and prohibited from doing so in the future. He didn’t bother to get the boundaries surveyed or look at the plat-map, or the original pins. The troubles began. The County called it all a civil matter. The bullying and “plowing” was going on for a couple months, when, on 11/26,  the good ol’ boy from Acme came into the woods in Luba’s backyard, accompanied by a big chainsaw.  She thought this was the day he would cut down every tree on her property he had an eye on. She may well have been right about her title to the disputed property, and it wasn’t like her title to her deeded property was ever in dispute, but that’s not the focus for now. On 11/26/09, 5 days after the good ol’ boy held an idling chainsaw next to her body, she was digging a barricade in a 4’4’’ passage of the greenbelt. When she saw him again she demanded that he get off her property. He kept on coming. She then stood in his way, holding her shovel across her shoulders and would not move to “excuse” him and what he was about to do.  There was a tree on one side of her and a fence on the other. He shoved past her and “proceeded on”. He walked further into the conflict zone, set down his tools and chainsaw, turned around and started coming at her. She didn’t wait around to see how the drama would unfold this time, ran to the chainsaw and grabbed it, hiding it behind her home.  She promptly called the sheriff and so had he, complaining of a theft of a saw, and also, of being hit with a shovel.

A deputy came. He asked her to give him the saw, but she wanted to return it to the Sheriff’s Office that Monday, to be held until a judge decides on this twist of the civil matter, otherwise, it would just be given back to the logger and he would continue destroying her property. The deputy had no ear for such complications, insisting only that she give him the saw.  She gave it to him. He ordered her to shut off her recorder, which was capturing their interaction. When she refused, he promptly arrested her for theft, and also, assault, which he never mentioned until then.  It was Thanksgiving morning and off she went to jail.

Our legal system kicked in and Luba was prosecuted and convicted of two gross misdemeanors - theft and assault - by Judge Elich. The “victim” - the guy with the chainsaw - admitted under questioning that he was unhurt and had no injuries; Luba denied hitting him.  The prosecution made no sense. It was “he said/she said”, with self-contradicting and physically impossible testimony from the prosecution’s witnesses, and no physical evidence of guilt. But Elich resolved those complications by inventing that Luba admitted to striking Hatch and found Luba guilty of assault; guilty of stealing the chain saw too, for not helplessly watching Hatch do whatever he wanted on her property as he’d done on her neighbors’ - even though Hatch threatened to cut trees on her deeded property months before her arrest; even though she had initiated an action to have a judge resolve the title dispute to the small strip of greenbelt adjoining it; even though she was only trying to keep the violence from escalating and protect her property; even though she was the one who called the sheriff; even though she returned the saw.  She now has criminal misdemeanors on her record, for life. Unless an appeal would overturn it.

So, in late July 2010 she appealed the District Court decision to Superior Court. For the past three years she has been given the run around by judges and prosecutors, a year was spent almost exclusively on appealing Snyder’s decision to prohibit her from filing pleadings on the underlying title dispute, and there was plenty of obstruction on the criminal case: her District Court case-file has been lost (and as hard as the junior clerks and the criminal supervisor searched, it wasn’t found until 2 weeks later in a “special cabinet for thick files”); it has taken 1-3 years for evidence designated for the appeal to be transmitted from the 4th floor District Court to the 3rd floor Superior Court. It appears Judge Elich had effectively controlled which designations the District Court clerk would transmit to the Superior Court.  Almost three years after the conviction, Luba’s appeal evidence was finally transmitted with the help of the Administrative Office of the Courts.

Luba Pekisheva has represented herself throughout this process; that was the only way she could put up the rigorous defense an innocent person needs once they get wrongfully arrested.  She was assigned a public defender in the beginning but, after giving him a chance to persuade her to the contrary, she felt he couldn’t/ didn’t want to distinguish between theft and property defense, and in a case such as hers, where there was no hope of the client pleading guilty, was of no help, and of considerable hindrance. Another public defender wanted to work with Luba, but neither her supervisor, nor Judge Elich let Luba switch from one to another. She took the case to trial herself. Of course, self-representation makes lawyers cringe, but she must’ve done good for Judge Elich to resort to making up an admission to a deliberate shovel strike, and to repealing the right to property defense, while he was at it. Besides, as Elich pushed the case to trial, it was less work to learn enough of the law to get the job done than to get an attorney who’d reveal the case sufficiently to do it justice, despite the fact that she or he aren’t making any money off it. At any rate, having talked to 2 local attorneys at different stages of the case, and gotten positive responses, but no commitment to jump in at this stage of the case, she didn’t really have time to try to pitch her case to the point that it takes to get someone gutsy and trustworthy pro bono.

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