Excoriated by judge, prosecutor not punished by boss or bar

EVERETT — A year ago, a robbery suspect walked free, and instead it was the deputy prosecutor who ended up in legal trouble.

That attorney is now back on the job handling felony domestic violence cases, and in spite of sanctions and a 214-page lambasting by a Superior Court judge, Michelle Rutherford faced no punishment from her boss.

After a “painstaking and thoughtful analysis” of the court record, Snohomish County Prosecutor Adam Cornell chose not to discipline Rutherford.

“I did not agree with the Court’s ultimate conclusions that Deputy Prosecuting Attorney Rutherford was either dishonest or intentionally misleading in the performance of her duties,” he wrote in a statement to The Daily Herald. “The events that led to my dismissal of the charges against (Keland) Guinn were addressed by appropriate discussion, coaching, and training. Accordingly, I determined no discipline was warranted.”

Guinn, now 20, was suspected in “multiple” heists around Puget Sound, mostly at marijuana stores. He was charged in February 2019, with a single count of first-degree robbery with a deadly weapon for a shooting that left a teenager with a gunshot wound to the leg near Lynnwood. He escaped conviction not because he was acquitted by a jury, but because the Snohomish County Prosecutor’s Office mishandled the case against him, in the view of Superior Court Judge Anita Farris.

Rutherford was sanctioned by Farris because the judge found that she committed willful misconduct, including withholding and destroying evidence and threatening a witness into testifying. Farris also alleged that Rutherford repeatedly lied to the court.

Cornell and the Washington State Bar Association disagreed with the judge in written statements in 2020, and Farris countered in February with 13 pages of single-spaced rebuttal, in response to an inquiry by The Herald.

The case has highlighted questions about how local prosecutors handle and disclose evidence. Another serious felony case with evidentiary issues was just dismissed in February.

The state bar association’s decision to pass on discipline — siding with Cornell and against a sitting judge — has raised eyebrows among public defenders.

‘Uniquely egregious’

Life circumstances delayed Rutherford’s preparation for trial, she wrote in court papers in 2019. That included taking time off for a medical procedure and, separately, bereavement for an unexpected death in the family.

Forensic testing still hadn’t been completed on a gun believed to be connected to the shooting. Rutherford was trying to reach a plea agreement with another defendant, who was supposed to testify against Guinn. And she hadn’t finished disclosing evidence to the defense as required by law in a process known as discovery.

After the trial commenced, Rutherford had detectives take a gun out of the crime lab and test fire it, per state law. But, public defender Elbert Aull pointed out, the gun had yet to be tested for DNA or fingerprints, and the process of test firing could have ruined any samples that would have been taken.

Cornell, who was on vacation, telephoned into the courtroom and motioned to dismiss the case on June 7, 2019, acknowledging a series of mistakes had been made by his employee. It’s the only time he has made such a call in his two years as the county’s top prosecutor. In court hearings after the dismissal, Judge Farris — a former defense attorney — questioned Rutherford’s motives, asking the deputy prosecutor to go through her thought process step by step. During the questioning, the judge caught Rutherford in apparent lies. And Rutherford later walked back some of her statements in written affidavits submitted to the court.

In December 2019, Farris wrote the scathing 214-page decision to sanction Rutherford, calling the deputy prosecutor’s handling of the case “uniquely egregious.”

“Rutherford’s acts interfered with the administration of justice,” Farris wrote at the time. “They resulted in a serious violent crime during which a human being was shot being decided based on her conduct rather than the merits of the charge.”

Farris noted that Rutherford “gained numerous tactical advantages” by delaying the entry of evidence.

“She later admitted she intended to spring the new witness testimony, new testing and new physical evidence on the defense in the middle of trial,” Farris wrote.

With what little information the defense had, it appeared Rutherford had not gathered enough evidence for a conviction. Farris wrote that “it would have been close to malpractice” if the defense agreed to continue the case.

As a result of the sanctions, Rutherford had to apologize to Aull, sheriff’s detective Eric Fagan, and the colleagues who defended her in court, including her boss, Cornell. She also had to take classes in legal ethics and read up on case law and professional standards.

Rutherford submitted the apologies in March. In her letter to Cornell, she disagreed that she took “horrible advantage” of anyone, or that she gave false or misleading statements to the court. She did acknowledge she could have managed the case better.

Writing to Fagan, Rutherford said it wasn’t her intent to throw the detective under the bus, as Farris insinuated.

“I believed at the time, and continue to believe, that I handled the situation with due professionalism and respect to both you and the court,” Rutherford wrote. “I attempted to maintain composure and answer the court’s questions. I hope you do not share the court’s perception of my behavior during the hearings.”

The letter to Aull was brief. She said sorry for accusing him of gamesmanship.

An appeal was never filed to oppose Farris’ findings. Cornell said he didn’t dispute the case was mishandled.

“We owned our mistake,” he said.

But Cornell said his office couldn’t appeal Farris’ allegations that Rutherford lied to the court, because the judge didn’t actually impose sanctions on that front. Those remarks came as a surprise when the decision was published, Cornell said, and Rutherford never had the opportunity to defend herself.

“Judge Farris did not provide Ms. Rutherford due process when it came to her findings and conclusions related to the allegation of her making false and misleading statements,” Cornell said. “That was unfair to Ms. Rutherford, and that was unfair to my office.”

‘Painstaking and thoughtful’

Months after Farris imposed sanctions, Cornell took his employee’s side.

In a letter to Rutherford in April 2020 explaining his decision not to punish her, he wrote that where Farris saw ill intent, he believed the deputy prosecutor was “simply imprecise or vague” in her responses.

“I am convinced that there were several significant factors that led to these imprecise and/or vague responses — including the Court’s aggressive tone, confusing and repeated questions, and apparent unwillingness to disengage from its own narrative — which leads me to conclude that you were not dishonest or intentionally misleading,” Cornell wrote.

In an interview with The Herald, Cornell pointed to the conclusions of the Washington State Bar Association, an independent body of lawyers. After reviewing the case, the bar association determined there was “insufficient evidence” to prove Rutherford engaged in unethical conduct. Senior disciplinary counsel Scott Busby called the 214-page sanctions order “unusual,” and agreed with Rutherford that Farris was on a “tirade” against the deputy prosecutor during court hearings.

“Ms. Rutherford clearly made some mistakes in her management of the case, which she admits, but we do not believe that she knowingly misled the court, that she acted unethically, or that sufficient evidence exists on which to base a disciplinary proceeding,” Busby concluded.

Writing to The Herald, Judge Farris said she wasn’t surprised by the bar association’s decision. The complaint against Rutherford was based on news reports and was brought by Anne Block, a disbarred lawyer known for prolific litigation and public records requests.

Block is also a blogger who doesn’t shy away from airing grievances against local officials, while naming names. In a February 2015 blog post, Block referred to Busby as “another piece of (expletive)” from the bar association’s office of disciplinary counsel.

Farris wrote that the complaint was unlikely to be taken seriously by the bar association. The judge never submitted a complaint herself.

“I have never reported any lawyer to the bar, including Ms. Rutherford, because I am sensitive to the time and cost involved in getting a legal education,” Farris wrote. “I also continue to believe some young lawyers can learn from their mistakes, and I wished to give this young lawyer a chance to do so.”

The judge also questioned whether the investigation was objective. Busby apparently received comment from Rutherford and Cornell, but didn’t speak to Farris or Aull, the public defender who represented Guinn.

Cornell said the judge had already provided all the information the bar needed to make a determination, in the form of a 214-page decision.

“Judge Farris was heard loud and clear by the legal equivalent of a Russian novel,” he said.

The complaint made to the bar only cited allegations that Rutherford made false or misleading statements to the court. As such, the bar investigation did not examine any possible violations related to Rutherford’s alleged withholding or mishandling of evidence.

Even if the investigation did look at the withholding of evidence, it is rare for a bar association to discipline a prosecutor for that kind of discovery violation, said William Bailey, a professor at the University of Washington School of Law.

For more than a decade, Bailey was a hearing officer for the state bar association — basically a volunteer judge who heard arguments on whether a lawyer needs to be disciplined. He said he has not personally reviewed every case himself, but he has been in tune with disciplinary proceedings in the state.

“I’ve never heard of it happening,” he said. “Period.”

The bar association’s online database of disciplinary notices shows just one instance of it happening. Twenty-one years ago, a prosecutor had her license suspended for 90 days because she had kept a key piece of evidence from the defense in a vehicular homicide case.

‘Player and referee’

Under a 1963 ruling in the U.S. Supreme Court case Brady v. Maryland, prosecutors must tell the defense about any evidence that could exonerate the accused. Failing to disclose Brady material can lead to a charge being dismissed or a conviction reversed.

In Washington state, the Brady decision is codified in the state’s Rules of Professional Conduct. The rules call on prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

The rules of professional conduct are typically enforced by the Washington State Bar Association’s Office of Disciplinary Counsel. Violations can result in admonition, reprimand or suspension up to three years. At worst, a lawyer can be disbarred.

An untimely disclosure of evidence to the defense can happen for a number of reasons, Bailey said.

Sometimes prosecutors fall victim to confirmation bias and become convinced of a defendant’s guilt, Bailey said. Anything inconsistent with that guilt might get shoved to the side and discounted, he said. Lawyers, especially those working trials, are competitive by the nature of their jobs, Bailey said. And Brady requires prosecutors to do things that are counter-intuitive to winning.

“The law aspires to be evenhanded and fair, and these are admirable goals,” Bailey said. “But then you put in human beings, and we tend to distort this.”

According to Bailey, a lack of accountability has allowed Brady violations to persist, both in Washington and throughout the nation.

It’s hard to keep track of when prosecutors fail to disclose information to the defense, Bailey said. It’s not like there’s a national database keeping tabs on Brady violations. And often it takes intense scrutiny for violations to become apparent. A trial may give an opportunity for such scrutiny, but the vast majority of cases don’t make it that far, instead ending in a plea deal.

Typically, Bailey said, oversight of the daily criminal justice grind tends to be on the light side.

“It becomes a catch-me-if-you-can kind of thing,” he said.

Kathleen Kyle, managing director of the Snohomish County Public Defenders Association, said the Brady decision effectively makes prosecutors both “referee and player.” Daily, they make decisions on what evidence they turn over to the defense, and defense lawyers have few ways to know if anything has been left out, on purpose or not. What might be irrelevant to a prosecutor might be linchpin evidence to the defense, she said.

As for the sanctions, Kyle agreed that the 214-page decision was unusual — for good reason.

“It wasn’t just the impact on this case, it’s the greater implication on all the lives the court systems impact,” she said.

It’s possible, Kyle said, that the decision not to introduce some evidence could lead to a wrongful conviction. In other instances, it might rob a defendant of a proper acquittal. She recalled one client whose case was dismissed, before Cornell became prosecutor, who felt he was “somehow let off on a technicality.”

“He really wanted his fair trial,” Kyle said. “He really wanted that acquittal.”

Kyle said public defenders routinely experience a last-minute dump of discovery on the eve of trial, or sometimes during trial, giving little time for the defense to prepare a counterattack. The defendant then has to make a lose-lose choice between an under-prepared attorney or a delayed day in court.

“This happens every day, discovery is disclosed every day, a decision not to disclose is probably made every day,” Kyle said. “It just feels like we are waiting for the next (case like Guinn’s) to arise, and we have to remain ever vigilant.”

Before a Herald reporter’s inquiry, Kyle and Cornell had not talked about any possible systemic issues involving the disclosure of evidence. After 22 years as a public defender, Kyle wondered aloud whether she was doing enough to bring these issues to light, or whether she had gotten “beaten down” with the way things are.

Cornell said he understood that prosecutors “hold all the cards.” Since Guinn’s case was dismissed, and his deputy prosecutor sanctioned, he has personally led office-wide trainings on ethics.

“We are always going to err on the side of disclosure,” he said.

It’s a principle that Cornell has held from before he was elected. When he worked trials, he handed over every single written note he took, regardless of whether it was required of him, said Jason Schwarz, who worked opposite of Cornell as a public defender.

“Adam as a prosecutor, there’s probably never an allegation of a Brady violation,” Schwarz said.

But what’s inherent to Cornell may not be to all of his deputy prosecutors. Cornell’s challenge, then, is to help his staff overcome their biases, Schwarz said.

In response to Rutherford’s sanctions, Cornell sent a detailed letter on Jan. 23, 2020, to remind his staff of their responsibilities under the Brady decision.

“The pivotal role we play in the administration of criminal justice carries with it immense responsibility and breathtaking discretionary power,” he wrote. “It is noble and often difficult work. We should always be resolute when justified, concede when just, and unyieldingly discharge our obligations with dignity and integrity.”

A ‘valuable’ employee

A lot has happened since Rutherford was sanctioned for her handling of Guinn’s case. A global pandemic brought the local criminal justice system to a crawl, and nationwide protests led to heightened criticism of the criminal justice system.

In Snohomish County, Guinn has been confronted with new charges. He was arraigned on a single count of first-degree robbery in January for his alleged role in a rash of pot shop stickups around the region. A different deputy prosecutor, Kirk Mahjoubian, wrote that Guinn and other suspects brandished guns and stole thousands of dollars in cash and marijuana. He was released from custody on a promise to appear for future court hearings.

Weeks later, prosecutors moved to dismiss an unrelated case in the middle of a bench trial, involving a dozen drug-related charges. The deputy prosecutor, Elliott Thomsen, alleged the defendant was the boss in a drug trafficking scheme that stretched from Mexico to Snohomish County.

Public defender Natalie Tarantino argued the prosecutors had a shaky case, and that there was “an entire smorgasbord of legal issues,” including possible Brady violations, as well as concerns raised through a parallel federal case involving other suspects charged in U.S. District Court in Seattle.

The drug case appears to have discovery issues reminiscent of Guinn’s, Tarantino said.

In court documents, she wrote that within a month of trial, prosecutors delivered thousands of pages of discovery, more than 11,000 voice messages that are in Spanish, and “an unquantifiable number” of jail calls and video visits. And information about another suspect — who apparently was charged in federal court with some of the same evidence — was left out almost altogether, Tarantino wrote.

Further court hearings may be held to determine whether any violations happened, and whether another deputy prosecutor will face sanctions.

As for Rutherford, the deputy prosecutor spent time working in her office’s charging unit and in Snohomish County District Court. There, she was accused at least once of being late in providing the defense with discovery, in a case of a woman accused of driving with a suspended license. The defense moved to dismiss the case, though the judge denied the motion. A trial date came and went, and the case is still waiting to be heard in court.

In his statement to The Herald, the county’s top prosecutor voiced his continued support of Rutherford.

“Rutherford remains a valuable, contributing member of the Prosecuting Attorney’s Office whose body of work over many hundreds of cases is greatly valued and appreciated,” Cornell wrote, “by her colleagues and myself.”

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.

Timeline

Jan. 28, 2019: A 17-year-old is robbed and shot outside Hazelwood Elementary east of Lynnwood. Keland Guinn is identified as a suspect.

Feb. 28, 2019: Guinn is charged with robbery.

June 7, 2019: Charges are dropped against Guinn, after Judge Anita Farris finds deputy prosecutor Michelle Rutherford mishandled and failed to disclose evidence.

Dec. 5, 2019: Judge Farris publishes a 214-page decision ordering sanctions against Rutherford.

Aug. 7, 2020: The Washington State Bar Association dismisses a grievance against Rutherford, and declines to pursue disciplinary action.

Dec. 9, 2020: Guinn is charged in a spree of pot shop robberies throughout Snohomish County. He is arraigned weeks later.

Feb. 11, 2021: Another case, involving a man with a dozen drug charges, is dismissed. The public defender argues that prosecutors committed Brady violations again.