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Lawyers for the relatives of two children who died when a car plunged into the Green River six years ago say King County has muzzled the sole living witness — the driver — with the threat of criminal prosecution.

In a motion filed Friday in King County Superior Court, attorneys for the families of Austin Fuda, 13, and 2-year-old Hunter Beaupre asked a judge to remedy what they described as “outrageous” collusion between the civil and criminal divisions within the county Prosecuting Attorney’s Office.

They’re asking a judge to grant immunity to the driver, Loni Mundell, who survived the Nov. 7, 2008, accident.

“They are literally using the threat of criminal charges as a sword to muzzle our only true eyewitness,” attorney Ann R. Deutscher said at a news conference Wednesday in Kent.

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The families have sued the county, saying poor design and maintenance of the rural road in unincorporated King County was partly to blame for the fatal accident. They want Mundell to testify at an upcoming civil trial, but claim the county has effectively silenced her by hanging the threat of being charged with vehicular homicide over her head.

A spokesman for the prosecutor’s office disputed the claim Wednesday, saying the office’s attorneys who are representing the county in the civil lawsuit have no involvement in the decisions on criminal liability. The statement also noted that Mundell has not been granted immunity.

Mundell, who was 16 and a straight-A student at the time of the accident, had dropped off her 3-year-old cousin at his day care and was taking her 13-year-old stepbrother to school and her 2-year-old cousin home when she lost control of her car on the two-lane rural road in the 29000 block of Green River Road Southeast. According to police reports, the road was wet and covered with leaves when the car spun around 180 degrees and slid backward down a slope and into the rain-swollen river.

Mundell escaped from the car but neither of the boys made it. The toddler’s body was found strapped in the car seat when the vehicle was recovered four days later. Austin’s body was never recovered.

No evidence of drug or alcohol use was found and Mundell was not using her cellphone, according to the lawsuit, but the case was forwarded to prosecutors with the recommendation that Mundell be charged with vehicular homicide.

Court documents show Senior Deputy Prosecutor Amy Freedheim reviewed the case and said the teen was likely driving too fast for the conditions, but declined to file charges against her, saying her “failure to maintain control of her car in this incident is insufficient to find she was driving with a disregard for the safety of others.”

But there is no statute of limitations on vehicular homicide and Deutscher and her partner James Dore Jr. say the county’s civil litigators have made certain Mundell knows that.

The attorneys for the boys’ families want Superior Court Judge Bill Bowman to ask prosecutors to grant immunity to Mundell, who is now 22, so she can testify freely about what happened at the civil trial without fear of criminal repercussions.

Failing that, they said they want the judge to tell jurors to hold King County equally responsible for Mundell’s silence because without that instruction jurors could infer that the driver has something to hide.

In a statement released on Wednesday, Dan Donohoe, spokesman for the prosecutor’s office, said granting criminal immunity “is, and should be, an extremely rare exercise of power.”

In the motion for relief filed on Friday, Dore and Deutscher say Daniel Kinerk — the prosecutor who is representing the King County Roads Division — asked Mundell’s attorney in a 2011 deposition if he was aware that the Sheriff’s Office had recommended Mundell be charged with vehicular homicide and that the prosecutor’s office had declined to file those charges.

Dore and Deutscher said at the news conference that was a thinly veiled threat.

Mundell is not represented by Dore and Deutscher but is, in fact, a named defendant in the lawsuit along with the county and the city of Auburn, which also maintains a portion of the road.

Because of how the state structured its liability laws, plaintiffs must sue all parties that could bear any responsibility in a matter.

Mundell is named because she was the driver of the vehicle, and Auburn is named because of potential jurisdictional issues.

Mundell is being defended by an attorney appointed by her car-insurance company.

In light of the possibility of criminal prosecution, that attorney has advised her to plead her Fifth Amendment rights to all questions.

Christine Clarridge can be reached at or 206-464-8983Information from Seattle Times archives is included in this story.

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