Seattle’s top prosecutor and public defender have jointly accused the city’s presiding municipal court judge of improper conduct, arguing his calls for harsher sentences and his handling of a case involving a prolific offender have undermined public confidence in the impartiality of the judiciary.
In a letter Wednesday to Seattle Municipal Court Presiding Judge Ed McKenna, City Attorney Pete Holmes and Department of Public Defense Director Anita Khandelwal asked McKenna to step away from his leadership post and to change his behavior or recuse himself from all criminal matters.
“I take issue with the assertions made by Ms. Khandelwal and Mr. Holmes,” McKenna said in a statement. “The letter was released to the media before I received it. Having just received the letter, I need time to consider it and I will be issuing a formal response in the near future.”
“I’ve never seen anything close to this before,” said Jeff Feldman, a University of Washington law professor who once chaired the Alaska Commission on Judicial Conduct.
“I’ve never seen a prosecutor and a defender unite to pursue a concern about judicial behavior … and I’ve never seen a judge do the things that this judge has been accused of doing, though I can make no judgment about whether these accusations are true or false.”
McKenna has acted outside his role by pressing Holmes and assistant prosecutors generally to seek more jail time when recommending sentences for defendants, Holmes and Khandelwal say. Seattle Municipal Court handles misdemeanor criminal cases, many of which involve theft.
“During these conversations, which took place outside the presence of defense counsel, you have urged the City to request longer sentences so that you can impose a sentence between the City’s and defense’s recommendations,” Holmes and Khandelwal wrote. “You have complained that you look like ‘the bad guy’ when you exercise judicial discretion by imposing a sentence above the City’s recommendation.”
“As a judge, you have the authority to impose any lawful sentence once a defendant is convicted and are not required to follow the City’s sentencing recommendations,” they added.
Holmes and Khandelwal claim McKenna has violated two canons of judicial conduct. They haven’t filed a formal complaint with the Washington Commission on Judicial Conduct because they hope the letter will persuade him to act differently, Holmes said in an interview.
“This is not a fight we picked,” Holmes said.
Reiko Callner, executive director of the commission, said she couldn’t speak to the allegations against McKenna. A complaint about a judge pushing prosecutors for harsher sentences could be troubling but would require investigation and analysis, she said.
McKenna, who worked in the City Attorney’s Office for 21 years and has served as a judge since 2011, has no record of discipline by the commission.
It is unusual for a prosecutor and public defender to team up. Business groups have been pressuring Holmes and other Seattle leaders to address what they’ve described as a failure to deal adequately with offenders, pointing to a report they had done.
The February report said that 100 people with multiple recent arrests — all struggling with homelessness and addiction — had been involved in more than 3,500 criminal cases, including theft, burglary, trespassing and assault.
McKenna has spoken out about the issue, arguing for more in-custody addiction and mental-health treatment and services, and in some cases, more jail time.
“It’s not different than raising your kid,” McKenna was quoted as saying in a recent Seattle Times editorial. “If your kid realizes there’s no consequences for their actions, they’re going to repeat the same behavior.”
Holmes and Khandelwal have agreed more services are needed but have argued against longer jail sentences as a broad remedy.
“The criminal legal system is the wrong place for people suffering from behavioral-health and chemical-dependency issues and we have failed to adequately fund the programs that could really work,” Khandelwal said.
In interviews, she and Holmes said McKenna should steer clear of politics. Their letter cites comments the judge made at a recent Downtown Seattle Association event.
“You suggested you felt bound to follow prosecutors’ recommendations 99 percent of the time. This suggests the very opposite of impartiality,” Holmes and Khandelwal wrote.
Their letter also points to McKenna’s sentencing in January of Francisco Calderon, who struck a stranger on a downtown street last year and who had been previously convicted of dozens of crimes.
Rather than order Calderon a mental-health evaluation, substance-abuse treatment and two years of probation and release him with time served after 50 days in jail, as recommended by a plea deal, McKenna sentenced him to the maximum 364 days in jail.
The judge invited an activist member of the public to the proceeding, where a TV reporter was also present, and McKenna had Calderon brought into court against his will, Holmes and Khandelwal noted, suggesting the judge made up his mind beforehand.
“At a time when these conversations are happening in the city, we need judges to stay above the fray,” Khandelwal said.
In their letter, she and Holmes identified the member of the public who attended the sentencing as affiliated with the advocacy group Speak Out Seattle. On Thursday, a Holmes spokesman acknowledged that was an mistake, after Speak Out Seattle denied it.
Dan Nolte, the Holmes spokesman, said the person is affiliated with the Facebook group Safe Seattle, where she has been identified as a member.
Feldman, the UW professor, said the rules around judges playing prosecutor are clearer than those around publicity.
“A judge may be frustrated that the system isn’t functioning the way he wants it to. But that’s not a reason to not adhere to the boundaries and norms we expect,” he said.