Assault conviction undone

Idaho’s Court of Appeals overturned an aggravated assault conviction Friday, with one judge describing the case as “yet another in a long line or pattern of repetitious misconduct” by the Kootenai County prosecutor’s office.

Judge Pro Tem Alan Schwartzman wrote in Friday’s decision that the prosecutor’s office had a “less than enviable track record,” citing seven other cases from Kootenai County as examples of alleged misconduct in the courtroom.

Kootenai County Prosecutor Bill Douglas – whose office is the subject of ongoing scandals involving e-mail use and sexual harassment allegations – said he “respectfully disagreed” with the court’s opinion.

Douglas initially said that only two of the cases cited by Schwartzman were handled by his office.

“To read this, it would seem like they’re pinning all those cases on our office,” Douglas said Friday, as he read through the opinion.

According to court records, the seven cases cited by Schwartzman are indeed from Douglas’ office.

Former Chief Deputy Prosecutor Rick Baughman, who resigned last month in the wake of sexual harassment allegations, handled a majority of the cited cases.

His predecessor – Lansing Haynes, now a district judge – was the attorney in one case. Deputy Prosecutor Art Verharen represented the state in another case.

Verharen is also the attorney who handled the aggravated assault case overturned Friday. He was out of the office and unavailable for comment.

Regarding his earlier statement that only two of the cited cases were from his office, Douglas said Friday evening that the names “did not look familiar.”

He said it would be unfair to look at those cases out of context, noting that his office prosecuted 1,200 felony cases in 2006 and has a 90 percent conviction rate.

“We have a long track record of convictions in tough cases that we achieve through ethical, vigorous prosecution,” Douglas said. “We have a long record of success.”

With the exception of Friday’s ruling overturning the 2004 conviction of Derek E. Phillips, the others cited by Schwartzman were upheld. The conduct of Douglas’ attorneys, however, was called into question.

In several of the opinions cited by Schwartzman, attorneys from the prosecutor’s office were criticized for improper and prejudicial statements made at trial and during closing arguments.

In a previous opinion from 2000, Schwartzman cited Baughman by name and challenged defense attorneys going up against Baughman to object more often and control what he described as “overzealous and highhanded prosecutorial improprieties.”

Claims of prosecutorial misconduct are easy to make, Douglas said.

Douglas said he will ask the Idaho attorney general’s office to appeal Friday’s ruling to the Idaho Supreme Court.

Phillips was charged with aggravated assault for allegedly threatening a woman with a pickax. Phillips was convicted and appealed on the grounds of prosecutorial misconduct.

During closing arguments at trial, Verharen characterized the testimony of two of the state’s own witnesses in the case as “implausible, ridiculous and lies,” according to the opinion penned Friday by Judge Karen Lansing.

Lansing wrote that Verharen’s comments were “not harmless.”

“We cannot say beyond a reasonable doubt that the verdict would have been the same absent the prosecutor’s improper closing argument,” Lansing wrote.

Two defense attorneys reached for comment Friday said they were pleased with the court’s ruling.

“It’s long overdue,” attorney Tim Gresback said. “It’s a finding that improprieties mandate a reversal of a conviction.”

Defense attorney Michael Palmer said there has been “an ongoing problem with some of the prosecutors in the Kootenai County prosecutor’s office.”

“There are some of them that are professional and ethical and don’t engage in that kind of behavior,” Palmer said. “There are others who do.”

Following Baughman’s resignation, Douglas promoted Marty Raap as Baughman’s replacement. Gresback said he’s hopeful it’s a positive change.

“Perhaps with the recent changes in personnel, the red hot criminal litigation environment will cool a bit,” he said.