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Two vie in race for Kootenai prosecutor

Winner of primary will claim the office

When elected in 2008, Kootenai County Prosecutor Barry McHugh took over an office with a public black eye suffered after two sexually charged email scandals, internal strife, allegations of sexual harassment and criticism of local judges.

McHugh ran unopposed in 2008 to replace retiring county Prosecutor Bill Douglas, who had held the office since 1989. During the past three years in office, McHugh said he has improved staff morale, the public and courts’ respect for the office and the quality of trial work.

“We’ve done a 180,” said McHugh, who previously worked for the U.S Attorney’s Office in Coeur d’Alene. “There’s been a dramatic turnaround.”

Yet tax attorney Donald Gary, a principal in the Spokane firm Winston & Cashatt, argues it’s not enough and that he can clean up the office even though he’s never worked as a public prosecutor. That doesn’t mean, Gary said, he hasn’t prosecuted, or litigated, criminal cases as a private attorney with 20 years’ experience in California, Idaho and Washington. He’s also a licensed certified public accountant, as is McHugh.

“I was really bothered by the things I was seeing and hearing,” said Gary, when asked why he would give up private practice and higher wages to serve the county, especially since he hasn’t been publically active in local politics. Gary lives in Post Falls.

Gary and McHugh are battling for the office in the May 15 Republican primary. Whoever wins takes office in January, because there are no Independents or Democrats to face in the November general election. Kootenai County is a Republican stronghold, with no Democrats elected to county, state or federal government.

Gary contends the county has had too many allegations of prosecutorial misconduct, the highest of all Idaho counties, and that he believes that’s just the “tip of the iceberg.” He uses an opinion piece in the February issue of “The Advocate,” a publication of the Idaho State Bar, as his main fodder.

The author, a retired Boise attorney, said his research found Kootenai County prosecutors have the most instances of prosecutorial misconduct – a problem he alleges shows a mentality that “values winning over justice, that seeks to persecute rather than prosecute.”

The report cited eight examples of prosecutorial misconduct, or errors that can lead to a court reversing a decision, by Kootenai County prosecutors in Idaho appellate courts over 14 years. None of the criminal cases occurred while McHugh has been in office. The author asked the courts to take more action than just “ritualistic verbal spanking.”

The Idaho Prosecuting Attorneys Association board wrote a response in the same edition, arguing that there are too many cases tried each year and such few occurrences of prosecutorial misconduct, even in Kootenai County, to deem it a pattern. Yet the board takes the issue of errors seriously and is providing more training for its members.

McHugh also responded in the magazine. He declined to comment on the cases handled before his tenure and instead touted the improvement and education in the office since his election.

“I ask that members of the Bar and the public judge our efforts by our performance since January 2009, using the thoughtful analysis our profession demands,” he wrote.

Gary disagrees with the rebuttals and said, “Mistakes happen but we are talking about habits.”

One specific example cited by both Gary and “The Advocate” is the Jonathan Wade Ellington road-rage trial, where a local woman was fatally run over on New Year’s Day in 2006. The Idaho Supreme Court threw out Ellington’s second-degree murder conviction citing prosecutorial misconduct – which constituted, in part, engaging in improper questioning meant to turn the jury against Ellington – and the likelihood that an Idaho State Police officer committed perjury during the 2006 trial.

After a new trial, which McHugh oversaw, a jury convicted Ellington on Jan. 31.

The deputy prosecutor, who helped Douglas try the original Ellington case, quit shortly after the initial conviction and took a job in Western Washington. He eventually returned to Kootenai County and was rehired by McHugh and worked on the second Ellington trial.

Gary argues that if the office held its attorneys to a more professional standard, the initial errors would never have happened. In private practice, Gary said, firms like his only have their reputation to attract clients, and rogue lawyers aren’t tolerated. That’s not the case, he said, in a county situation where the state and law enforcement are “feeding” the prosecutor business.

He also questions why McHugh would rehire an employee who committed calculated misconduct – which the court described as using “intentional, gratuitous references” to the victim “having been run over” to “appeal to the emotions of the jurors.”

McHugh defended the deputy prosecutor, calling him an “excellent trial attorney” and noting that the judge in the most recent Ellington trial complimented him and McHugh last week during motions on the manner the trial was conducted.

McHugh said he wouldn’t do anything to harm the office’s reputation or damage the public’s trust.

“I’m going to continue to re-establish the trust that has improved and will improve with the courts, law enforcement and the pub



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