The two Washington State Patrol troopers whose botched child pornography investigation cost taxpayers $2.4 million have been transferred off a sex crimes unit but have not faced any discipline for providing false information to a judge.
WSP Sgt. John Sager and Trooper Rachel Gardner are back on patrol and will not be placed on what’s known as a “Brady” list for officers known to have lied on the job, WSP spokesman Bob Calkins said.
The agency earlier this week agreed to pay $2.4 million to settle a lawsuit filed by Spokane firefighter Todd Chism, who was errantly accused in 2008 of possessing child pornography based largely on activity linked to a stolen credit card belonging to his wife, Nicole. His civil case against WSP was bolstered by a 9th U.S. Circuit Court of Appeals ruling last year that the Chisms made a “substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth.”
WSP officials, however, said the troopers did nothing to warrant disciplinary action against them.
“This was done in good faith,” Calkins said of the false information Gardner provided a judge that led to the issuing of a search warrant. “The fact that some mistakes were made had a disproportionately awful outcome for the Chisms doesn’t elevate the mistake to one that you would discipline for.”
Chism, a city fire lieutenant who recently was reinstated from paid administrative leave, said he was flabbergasted at the WSP’s lack of disciplinary measures against Sager and Gardner.
“If they feel they can treat citizens in the manner that they treated my family, it should scare every citizen in the state,” he said. “What they did was criminal. I also consider the administration that is refusing to punish Sager and Gardner to carry the same label.”
The case began in 2007 when investigators learned from a national database that someone using Chism’s stolen credit card had paid the hosting fee for two websites where pornography could be uploaded. Gardner investigated the case and learned the card was registered to Nicole Chism of Nine Mile Falls.
But when Gardner searched the IP address, those searches led to two other names with no connection to the Chisms. She omitted that information when she submitted a request for a search warrant, which was reviewed by Sager before being sent to a judge for court-authorized permission to search the Chisms’ home and Todd Chism’s real estate business.
In the actual search warrant request, also known as an affidavit, Gardner wrote that “based on the information received from the NCMEC about the images downloaded by Todd M. Chism, it is likely to believe he was using internet service at his residence and/or his business office” and that the Chisms’ credit card was used to purchase child pornography.
That description was singled out by appeals judges in their faulting of the investigation.
“When Gardner drafted the affidavit, she possessed no information that Todd had ever accessed any child pornography images,” Judge Richard Paez wrote in part, “nor did Gardner have any evidence that the images were ever downloaded by anyone.”
Gardner’s second “patently false” statement was that the Chisms’ card was used to purchase pornography when the only transactions Gardner had were for the hosting fees, Paez said. The appeals judges also noted that Gardner failed to follow the WSP’s own training manual on investigations involving electronic accounts.
But Calkins pointed to a dissenting opinion by Judge Sandra Ikuta who did not fault Gardner for pursuing the case.
Chism’s attorney, Bob Dunn, said he doesn’t understand why WSP officials can’t simply acknowledge that Sager and Gardner were transferred from the sex crimes unit as a result of their actions.
“The sad note in this is that the State Patrol just doesn’t own up that they had two … troopers who completely went rogue and did something that was not sanctioned by policy or procedure,” Dunn said. “There is no way, under any theory, that police officers did what Gardner and Sager did and be justified in their conduct.”
Calkins noted that Sager and Gardner were getting 3 percent more pay for working for the specialty unit. That pay went away when they went back on patrol, but the pay reduction was not considered a demotion.
“To be honest, we initially did have a concern” about how the case was handled, Calkins said, “but we were able to determine that what was done was reasonable and in good faith. There were things wrong with that investigation, but … we did not find truthfulness issues.”
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