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.