A Snohomish County judge has sanctioned a deputy prosecuting attorney who she found had lied and withheld and destroyed evidence in a criminal trial, forcing the county to dismiss felony drug and gun charges against a 19-year-old man accused in a drug rip-off and shooting last year.
Superior Court Judge Anita Farris, in a remarkable 214-page order issued last month, detailed a long string of what she termed “uniquely egregious” transgressions by Snohomish County Deputy Prosecuting Attorney Michelle Rutherford, who the judge said is lucky to have escaped a disciplinary referral to the Washington State Bar Association — or even criminal charges.
The judge stopped short of sanctioning Snohomish County Prosecutor Adam Cornell and his civil deputy, but chastised them for failing to do their homework before they appeared in court to defend Rutherford against the sanctions being sought by the defense attorney in the case. Had they read transcripts from hearings in the case and familiarized themselves with court documents, Farris said, they would have discovered conflicting statements and outright lies — many of which Rutherford had already acknowledged.
While the judge specifically found that Cornell did not intentionally misrepresent the case, her order stated he “shall read this court’s entire decision herein” as an”educational requirement.” Intentional or not, Cornell and his civil chief, Bridgette Casey, submitted a sworn declaration from Rutherford that contained false and misleading information.
“While they did not know their representations were false and misleading, they had the trial transcripts and could have figured it out” by comparing trial transcripts, documents and discovery, which is what Farris did in her order. “The prosecutor’s request that I find all violations were not willful when the violator has already bluntly admitted several violations were willful is … a request to ignore the facts and make findings contrary to the truth.”
The prosecution involved the Jan. 28, 2019, robbery and shooting of a 17-year-old man in the parking lot of Hazelwood Elementary School in Lynnwood The victim said he was meeting a young woman to sell her a half-pound of marijuana. He said several young men jumped from a car and accosted him, and gunshots were fired, striking him in the leg.
Police quickly identified the woman — who would become their star witness — and identified a suspect: her 18-year-old boyfriend, who had an extensive juvenile criminal history including convictions for assault.
He was charged with first-degree robbery and unlawful possession of a firearm, and the case was assigned to Rutherford. Court documents and Farris’ order indicate the defense struggled for months to obtain evidence in the case, despite clear-cut case law and court orders directing this so-called “discovery.” A landmark 1963 federal case, Brady vs. Maryland, requires prosecutors to turn over any potentially exculpatory evidence to the defense in preparation for trial.
Instead of abiding by the law, Farris said Rutherford “very consciously decided to get tricky with the legal discovery requirements,” failing to turn over statements by the witness that were contradictory and deciding to secretly send a firearm for forensic testing in the middle of the trial, knowing those tests would destroy DNA and fingerprint evidence that might have been helpful to the defense.
Farris dismissed the case in June at the request of Cornell. The defense then sought sanctions against Rutherford.
Rutherford, in pleadings and statements to the court, blamed personal difficulties, including health problems and an unexpected death in the family. As a result, Farris said she gave Rutherford the benefit of the doubt for violations that occurred early in the case, which was initially filed in February 2019 and amended in June just before it went to trial. The judge issued no sanctions for any of the deputy prosecutor’s missteps during that period, although she said there was evidence some of those violations were intentional as well.
However, the judge found eight separate categories of misconduct by Rutherford, including breaching her “ethical duty of candor to the court” and making sworn false statements. Throughout the case, the judge found, Rutherford repeatedly withheld potentially exculpatory evidence from the defense, failed to disclose promises and threats made to the state’s star witness, did not turn over reports and interviews that could have helped the defense, and “willfully” destroyed DNA and fingerprint evidence the defense believed would have helped their case.
Farris imposed what she said were “light sanctions” — mostly in the form of additional legal education and training — for the violations. The judge told her to write letters of apology to Cornell, Casey, the police detective in the case and the defense attorney, Elbert Aull, who Rutherford during the trial had accused of “gamesmanship” while she was secretly hiding reports and planning to destroy evidence that could have helped the defendant.
“Rutherford’s acts interfered with the administration of justice,” the judge wrote. “They resulted in a serious violent crime during which a human being was shot being decided based upon her conduct rather than the merits of the charge.”
Cornell, in a prepared statement and an interview, said he was “profoundly disappointed in the way the case was handled,” and pointed out that he personally asked the charges be dismissed during the trial after the extent of the violations became known. He called it an “extraordinary and rare remedy.”
“It is essential to the work we do that we have the trust of the community,” he said. “When we do lose that trust, it is a failure. That is what happened here.”
Cornell said Rutherford, who was admitted to practice law in Washington in 2011, remains an attorney in his office while he reviews the judge’s order and gives the deputy a chance to explain herself. She has been reassigned to the charging desk.
He said in a prepared statement that the actions in the case were “both atypical of the assigned prosecutor’s work and inconsistent with the practices followed by our attorneys.”
Aull, the defense attorney, commended Farris for issuing the order. He remained indignant over being accused by Rutherford of gamesmanship while she was playing fast and loose with her discovery obligations in a way that would eventually lead to charges being dismissed by her own office.
“You’ve got to have a lot of nerve,” he said. “And I’ve still not received the written apology the judge ordered last month.”