Accusations fly in aftermath of routine case

The mishandled trial of a low-profile case in 2005 has blown up into a complex web of legal accusations with political overtones.

Last week, the State Commission on Judicial Conduct admonished Spokane County Superior Court Judge Robert Austin for comments he made to a jury that had just convicted a nurse for drug possession. Austin disagreed with the jury’s decision.

Some jurors took Austin’s comments as criticism, and Austin agreed to the commission’s decision to admonish him.

“Even though I have been on the bench for over 20 years, I find that I am always learning something new,” Austin told The Spokesman-Review. “Even though I did not intend to criticize the jury’s verdict in this case, some jurors took my comments as criticism. I have learned that I need to be more aware of how comments I make can impact the perceptions of others.”

The complaint that led to the admonishment came from Spokane County Deputy Prosecutor David Stevens. After that complaint was filed in November 2005, Assistant Public Defender Michael Elston filed a motion asking Austin to overturn the nurse’s conviction based on prosecutorial misconduct by Stevens.

Austin agreed. In an order signed in January, he ruled that Stevens erred on three points: by implying to the jury that the nurse was guilty because she refused to allow a detective to tape-record her statement; by arguing facts that were not based on evidence; and by suggesting to the jury that the defense should have produced evidence when it was in fact the prosecutor’s responsibility.

“This is prosecutorial misconduct,” Austin wrote. “It is quite apparent this misconduct affected this jury’s verdict … and a new trial is granted.”

In return, Stevens – who is one of five candidates seeking a District Court seat – said that Austin’s ruling was motivated by Stevens’ initial complaint to the conduct commission.

“(Austin) said in his admonishment that he was upset because of a lack of evidence. Did he set aside the verdict for that?” Stevens asked.

He has appealed Austin’s decision to overturn the conviction.

“Obviously if my office thought I had done something wrong, we wouldn’t be appealing it,” Stevens said. “I think it’s pretty clear that Austin doesn’t cite any authority for his novel opinions.”

Asked to respond to Stevens’ comments, Austin replied: “Because it is on appeal, I should not be commenting at all. And neither should (Stevens).”

Stevens is campaigning against three other candidates to replace incumbent District Court Judge Harvey Dunham. The other candidates are Spokane County Deputy Prosecutor Debra Hayes and private attorneys Christine Carlile and Mike Nelson.

Stevens said he doesn’t think Austin’s finding will hinder his campaign. He noted that one of his campaign opponents, Hayes, has been cited for prosecutorial misconduct, by a court of appeals.

“That’s clearly misconduct,” he said. “It’s what we call rookie misconduct.”

In Hayes’ case, she successfully prosecuted 31-year-old Anthony D. Davis for domestic assault. According to court records, Davis severely beat his live-in girlfriend and also assaulted the woman’s daughter on May 7, 2004.

In the appeal of his conviction, Davis made two allegations of prosecutorial misconduct against Hayes. The state Court of Appeals ruled the first allegation of misconduct was unfounded. But the court agreed that Hayes had asked Davis improper questions during cross examination – although Davis’ defense attorney did not raise an objection during the trial.

“Because the improper questions could have been cured by an objection and a proper instruction, the misconduct was not so prejudicial as to require reversal,” the appeals court said.

Hayes and Spokane County Prosecutor Steve Tucker said allegations of prosecutorial misconduct are raised during almost every appeal. But it was extremely rare for Austin to make an actual finding of prosecutorial misconduct against Stevens.

“This kind of smacks of some kind of revenge for filing the complaint with the Judicial Conduct Commission,” Tucker said.

When told that Stevens called her misconduct allegation “rookie misconduct,” Hayes responded by saying that she had hoped to run a campaign about issues.

Then she fired back.

“It’s funny that he would say ‘rookie’ mistake because he hadn’t even done a jury trial until I taught him,” Hayes said. “In his desperation to win this race, he has turned to lying.

“It’s a sad day when you have a public servant disparaging another public servant and using lies to do it.”

As for the nurse whose case started the whole thing, Stevens refiled charges against her last month.

Instead of simple drug possession, 36-year-old Linda Akkerman now faces six charges, including two counts each of making a false statement, possession of a controlled substance and attempting to obtain a controlled substance by fraud.

Tucker said Wednesday that he didn’t know Stevens had brought more charges against the nurse.

On Thursday, Stevens sent out a press release announcing his endorsement by Tucker.

“The District Court needs judges with trial experience and integrity, and Stevens has time and again proven that he has the right stuff,” the release quotes Tucker as saying.

Hayes announced at a picnic Thursday that Tucker had endorsed her as well.

Tucker “told me he was going to endorse both (deputy) prosecutors,” she said. “That’s hardly a bulletin.”

Staff writer Jim Camden contributed to this report.