Eric Lindell, a low-profile defense attorney in West Seattle who has been involved in some of the region's highest-profile cases, is challenging the constitutionality of a new state law making it easier to convict defendants in sex-crime cases.
Eric Lindell became a lawyer for lots of reasons.
Reason No. 1: He’s competitive.
“It’s still one of the few occupations where, at the end of the day, there’s a clear winner and there’s a clear loser,” he says. “Some lawyers will say, ‘I lost — but the jury was out for three days.’ To me, that just means it took you longer to lose.”
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For someone who hates to lose, Lindell takes a lot of cases that are hard to win.
Last month he went to the Temple of Justice, home of the Washington Supreme Court, to argue a case with broad ramifications, a case that could erode a legal principle that dates back hundreds of years. The case’s stakes are high. So are Lindell’s hurdles.
Lindell is defending a man who could hardly be less sympathetic — Roger Scherner, now 82, rich and remorseless, accused of molesting three generations of relatives, all young girls at the time. “Previous adventures … with women,” is how Scherner has described his past. Scherner was arrested while walking off the ninth green of a majestic golf course in Monterey, Calif. He tried to avoid trial by fleeing to Florida — with a wig, and with his golf clubs.
In defending Scherner, Lindell is challenging the constitutionality of a new state law that has powerful public appeal. In cases where someone is accused of a sex crime — say, molesting children — the law allows prosecutors to introduce “propensity evidence,” a fancy term for past instances in which a defendant was accused of comparable crimes, even if he wasn’t charged or convicted.
The bill passed in the Senate, 47-0. The vote in the House was 91-5.
King County prosecutors used this law while convicting Scherner of molesting a 7-year-old relative during a family vacation in Bellevue. Jurors heard not only from that girl, but from four women who testified Scherner had abused them when they were children. “History has a way of repeating itself,” the prosecutor argued at trial.
The Temple of Justice is all imported marble and tasseled curtains and 60-bulb chandeliers, but if you’re Eric Lindell, arguing State of Washington v. Roger Alan Scherner, what you see are windmills.
Lindell is 50 years old. He works alone. At his West Seattle office — the ground-floor window frames a Metro bus stop — he answers his own phone.
“He’s always been kind of a singular kid,” says Rocky Lindell, a retired lawyer who is Eric’s uncle. “He’s very independent. He would make a tough guy to have in a law firm — because he thinks for himself, and he wouldn’t take any crap from a senior partner.”
In his 22 years of practice, Lindell has emerged as a go-to lawyer for tough cases, praised by colleagues for his preparation and courtroom skill. But chances are, you don’t know his name.
He helped defend Gary Ridgway, the Green River Killer, who admitted murdering 48 women in a plea deal that spared him the death penalty. Few cases could promise more publicity, but Tony Savage, another of Ridgway’s eight lawyers, says of Lindell: “He wasn’t looking for the TV cameras. He wasn’t interested.”
Lindell’s clients have ranged from people charged with DUI to one of the state’s first “three strikes” defendants to Kevin Cruz, who was convicted of murdering two men at the Northlake Shipyard but escaped a death sentence.
Lindell grew up in Edmonds. In 1974, the year he turned 14, he was walking home with two friends from the B&H grocery store. A police car drove by — slowly. Then more police cars appeared, and the officers jumped out, their guns drawn on the three teens.
Police arrested the three and drove them to a gas station next to the B&H. Three guys had just held up the station, police said. The officers figured Lindell and his friends were good for the crime.
At the gas station, a man named Harold approached the police. Harold was the “H” in B&H. Harold said he knew these three kids, and that he had seen the robbers, and that these kids weren’t them.
“The police let us go,” Lindell says. “No apologies, nothing.”
Lindell couldn’t help but wonder: What would have happened if not for Harold?
When state lawmakers passed the propensity-evidence law in 2008, their purpose was clear: Make it easier to convict in sex-crime cases.
During a Senate committee hearing, a representative for the state’s judges opposed the bill, saying this matter was best left to the Supreme Court’s rule-making process. Hearing that, a senator said maybe the justices should quit legislating from the bench.
In August 2008, Roger Scherner became King County’s first defendant convicted with the law, receiving a sentence of 11 years. Lindell defended Scherner both at trial and on appeal.
Lindell has filed more than 130 pages of written argument — Brief, Reply, Petition for Review, Supplemental Brief, Second Supplemental Brief — challenging specific rulings in Scherner’s trial as well as the law’s constitutionality.
His argument boils down to this: A defendant is supposed to be presumed innocent. If a jury hears of accusations in a defendant’s past — particularly of rape or molestation, allegations with powerful emotional triggers — the presumption will flip. The defendant will be presumed guilty. A defendant could be convicted based on character (who he is) and not on the evidence of the charge (what he did).
This, Lindell argues, explains why courts in England and the United States have, with narrow exceptions, disdained propensity evidence for so long. Lindell peppered his appellate briefs with long-ago rulings and dates — 1684, 1763, 1892, 1918.
He also argues the law trespasses upon the judiciary’s turf and accords less protection to people charged with sex crimes than to other defendants.
On March 17, the Washington Supreme Court heard oral arguments. Lindell received 10 minutes to make his case.
“There is a due-process violation, a separation-of-powers violation and an equal-protection violation,” he told the nine justices. “This statute’s just not workable.”
Justice Gerry Alexander seemed taken with Lindell’s separation-of-powers argument. If lawmakers can do this, he wondered, what would keep them from deciding all evidence is admissible?
Justice James Johnson, meanwhile, seemed none too taken with Lindell’s appeal to historical precedent. “Maybe we’re just behind the times,” he said.
The Supreme Court is unlikely to announce its decision for months.
In high school, Lindell excelled at basketball.
In 1977, at the start of his junior year, he transferred from Edmonds High School to Shorewood High. The year before he transferred, Shorewood went 1-19. The year after he transferred, Shorewood went 18-6 and finished third in state.
Lindell, a 6-2 guard, averaged 19 points a game. His photo ran in The Seattle Times. “Eric Lindell: Can pour them in,” the caption said. His senior year, Lindell averaged 22 points a game and led all scorers in Metro League Class AA. Against Lincoln, he hit the game-winning shot with one second left in overtime.
He also starred in track, eclipsing 20 feet in the long jump.
But as for the classroom …
“Wasn’t interested,” Lindell says.
“My grades just sucked, and I barely graduated.”
He received athletic-scholarship offers, but turned them down. John Thompson, the legendary basketball coach, called and asked him to visit Georgetown. Lindell declined. He wanted to be a lawyer, and he knew he could no longer downplay classes. With three weeks left in summer, he hopped into his friend’s white Camaro and the two busted over the mountains to Ellensburg. At Central Washington University, they just showed up.
“Thank God they took us,” Lindell says. “I don’t think they would now.”
In college, Lindell’s grades improved. He made it into law school at Willamette University in Salem, Ore., where he lost interest again. He doesn’t remember asking a single question in three years of classes.
What he was interested in was court.
He began trying cases while in law school, as an intern with the local prosecutor’s office.
A supervisor asked him: You know you can’t do this unless you’ve finished taking your Evidence class, right?
Lindell was only then taking Evidence. He pondered the question.
“Yes,” he answered.
He did know it. He continued trying cases.
He loved going to court, but some cases didn’t sit well with him, like when he prosecuted a father, down and out, caught stealing toys for Christmas.
With Roger Scherner, prosecutors have an almost ideal case with which to test the state’s new law and to argue for its need.
Historically, sex crimes have proved a challenge to prosecute because the cases often become a straight-up credibility battle, with the word of the accused against that of the accuser. When the accuser is a child, the odds against conviction can mount.
At trial, Lindell cross-examined the girl, who said Scherner molested her in Bellevue. She was 7 then, and 14 when she testified. Lindell seized on how details of her trial testimony conflicted with her previous accounts to the prosecutor, to a police detective and to Lindell.
“So you lied to me?” “Yes, I did.” … “You lied to her, too?” “Yes, I did.” … “And you lied to all of us?” “I did.”
Scherner likewise struggled when the prosecutor cross-examined him. If the trial had come down to Scherner’s word against the girl’s, maybe the jury would have convicted — or maybe not.
But the other witnesses — the four women who accused Scherner of molesting them as children — crippled Scherner’s credibility.
When defense attorneys argue the new law inevitably will lead to innocent people being convicted, Scherner makes for a poor Exhibit No. 1.
But what happens when the scales tip too much — when an accuser’s history is shielded while a defendant’s is exposed?
The week before Lindell argued on Scherner’s behalf, the Supreme Court heard another case, out of Walla Walla, in which a man was convicted of raping two girls he and his wife had adopted.
At trial, virtually no medical evidence supported the teenage girls’ allegations. The defense argued that the girls, bristling at chores, lied because they wanted out of the home. The judge refused to let the defense use evidence of the defendant’s good moral character to argue for his innocence.
The judge also refused to let the defense present evidence of this: After being removed from the defendant’s home, the girls were placed in a foster home. Here, they were also unhappy. They had to go to church. The food was vegetarian.
The girls burned the house down.
The judge ruled the arson evidence might sway jurors more than he believed it should.
In 1989, Lindell went to work for the Society of Counsel Representing Accused Persons, a public-defense agency in Seattle. One of his first cases looked like a sure loser — a man in his 60s, accused of DUI, who, when arrested, had told police: This is no problem. I’ve driven drunk through seven states before.
Because the case kept getting continued, Lindell spent considerable time with his client.
The man, an African American, was missing two fingers. He told Lindell he’d lost them long ago, while working at a meatpacking plant in Chicago. A friend tried rushing him to the hospital, taking the severed fingers along. Police stopped their car for speeding. They were two black men, in Chicago, asking for understanding, and getting none. Police wrote the ticket, using up precious time. The fingers couldn’t be reattached.
Listening to his client’s stories, Lindell found he liked the man. Lindell tried the case — and won an acquittal. He filed away a lesson: If he got to know his clients, and learned to care about them, he was more likely to succeed at trial.
Lindell defends clients other lawyers shy away from. In 1993, he represented an accused burglar who had proved such a menace — punching or threatening corrections officers, a hospital staffer, previous defense counsel — that, at trial, he was manacled from chest to ankles. The “Hannibal Lecter chair,” some called it. To keep jurors from seeing the restraints, the defendant was covered with a black tarp, with only his head visible.
The jury acquitted. The prosecutor called it the most shocking verdict in his nine years of trying cases.
The following year, Lindell defended Paul Rivers, a King County man who became a test case for the constitutionality of Washington’s “three strikes” law, the nation’s first. Rivers grabbed a bag containing $337 from an espresso-stand operator and ran away. Convicted of second-degree robbery, he was sentenced to life without parole. Upon hearing the verdict, Rivers wept.
“I was sick,” Lindell says. “What a ridiculous case for that law to be tested out upon.”
The Washington Supreme Court upheld the law, which had been imposed by citizen initiative. Lindell didn’t handle the appeal.
In 2005, Lindell, now in private practice, represented Mike Oakland, a man accused of manufacturing methamphetamine.
King County sheriff’s detectives had watched Oakland walk out of his house through a basement door, looking dazed, as though drugged. The detectives found methamphetamine in Oakland’s pocket, inside a coffee filter. Then they went inside the house and found the components of a meth lab, from red phosphorus to muriatic acid to a heating mantle.
“I thought for sure I was done,” Oakland says.
Questioned by a detective, Oakland insisted the real cook was a man staying at his house. Oakland admitted to a substance-abuse problem. He admitted to sometimes helping the cook. But he said he didn’t know how to manufacture the stuff himself.
For all the evidence against Oakland, the prosecution’s case had holes. The detectives’ work raised questions, from their warrantless sweep of Oakland’s house to misplacing the case file for almost two years. (It was eventually found under an air conditioner.)
The same year Oakland stood trial, the TV show “Boston Legal” attracted a devoted following. William Shatner played the bombastic Denny Crane, a legendary litigator who delighted in saying his name — Denny Crane, Denny Crane — and who claimed never to have lost a case. Bill Clinton loved the show. So did Mike Oakland.
At Oakland’s trial, a string of detectives and deputies took the stand.
“He single-handedly drove these people nuts,” Oakland says of Lindell. “He picked everybody apart, to the point where they looked like they didn’t know what they were talking about.”
Lindell had asked Oakland not to talk to him while court was in session. So each time Lindell sat down after cross-examining a witness, Oakland instead jotted a note and slid it over. Each note had only two words:
Heather Enajibi, one of the jurors, remembers feeling sorry for the prosecutor. She says of Lindell: “He was good, he was good. Not necessarily likable. But he was good. My impression was, ‘Huh. He’d be a good one to get.’ “
The last day of trial, Lindell noticed one of the jurors had brought in Krispy Kreme doughnuts. Lindell capitalized in closing arguments, comparing Krispy Kremes to methamphetamine.
I like doughnuts, Lindell told the jurors. I know they’re not good for me. Still, I eat them. But that doesn’t mean I make them. I just eat them.
The jury deliberated for two hours and 20 minutes. When the verdict was announced, Oakland leaned over to Lindell. “Did they just say not guilty?” he asked.
Leaving the courtroom, a juror told Lindell: There’s still some doughnuts if you want one.
The first time Lindell appeared before the Washington Supreme Court was in 2007. He was working a civil case, one that captured another reason why he’s drawn to the law.
“I’ve never liked bullies. And I think a trial attorney is one of the few jobs where, if somebody gets bullied, you can even out the scales.”
One night in December 2003, a 3-year-old girl, Ashley McLellan, drowned in Kent while home with Joel Zellmer, her stepfather. Zellmer told police that Ashley must have walked out the back door to a deck, eaten some cake left sitting there, and then, to wash her hands, walked down the deck’s stairs, made her way to the unlit pool, then fallen in.
A King County sheriff’s investigator filed a three-page report, saying the scene suggested nothing “other than an accident.”
Ashley’s mother, Stacey, had married Zellmer a few months earlier. Convinced the Sheriff’s Office was wrong, she turned to Lindell. She showed him nine police photos taken the night Ashley died.
Lindell has two daughters. At the time, one was Ashley’s age. He studied the photos — the creepy night, the isolated pool, the woody path leading from the deck. Ashley had poor eyesight. She was terrified of the dark. On a night that dipped below 40, she wore only a light knit top and leggings.
Lindell took the case and dug into Zellmer’s past. Stacey said Zellmer had insisted they buy a $200,000 life-insurance policy on Ashley. That was suspicious. But more alarming was this: Zellmer’s history revealed a string of romances with mothers of young children, and repeated instances where those children were hurt while in Zellmer’s care. A baby boy’s legs were fractured. An infant somehow fell into Zellmer’s hot tub. A 4-year-old girl was rescued from Zellmer’s pool — the same pool in which Ashley drowned.
And time and again, Zellmer had suggested taking out life insurance on children who weren’t his.
Lindell filed a wrongful-death lawsuit against Zellmer on behalf of Ashley’s parents. He also urged authorities to reopen the criminal investigation, writing to Sheriff Sue Rahr and appealing to Marilyn Brenneman, a prosecutor known for taking on tough cases.
The defense asked that the lawsuit be tossed, citing parental immunity, a doctrine Washington has embraced since 1905. The doctrine, which bars claims for negligent parental supervision, is supposed to protect family harmony, a quaint rationale that has drawn increasing fire in recent decades.
A King County judge said he didn’t care for the doctrine, but had to apply it, even to a stepparent. Lindell turned to the Washington Supreme Court, saying it was time for Washington to join other states that have abolished or gutted the doctrine.
In 2008, Lindell lost — and he won. The justices refused to jettison parental immunity, but they revived the lawsuit, saying there was a factual question of whether Zellmer was actually acting as a parent to Ashley.
But by that time, Stacey was willing to let the lawsuit go. That’s because the authorities had agreed to reopen the criminal case. Brenneman, the prosecutor, says Lindell did an “amazingly good” job of developing evidence and teasing out the patterns.
Brenneman, who had opposed Lindell in court, also valued his judgment, saying he is highly regarded by lawyers and judges alike.
In April 2010, a jury convicted Zellmer of second-degree murder. A judge sentenced him to 50 years.
Stacey says of Lindell: “I will be forever thankful that he took this case.”
In some ways, Lindell’s work in the Zellmer and Scherner cases suggests a contradiction. With Zellmer, Lindell gathered propensity evidence that helped establish guilt; he also asked the courts to reject a principle with a long history. In Scherner, Lindell argues against propensity evidence while asking the courts to stay faithful to history.
But with attorneys, you don’t square cases. A lawyer’s duty is to client, not consistency.
Lindell subscribes to the core principle of the adversarial system — that if both sides do their job, and do it well, justice will out.
Eric’s father is an identical twin with Rocky Lindell, the retired lawyer. When Eric started out, he turned often to his uncle for advice. As time passed, as his skills sharpened, Eric called less often.
Despite Eric’s success, despite his cases being all over the newspapers, whenever Eric’s dad had a legal question, he didn’t turn to his son. He turned to Rocky. Eric’s dad also never watched his son in court, never saw him try a case.
“I wasn’t real sure how much he liked what I did, representing killers and thieves,” Eric wrote in “Law Stories,” a book of anecdotes from local lawyers. “Still, I knew he was proud of me.”
A few years ago, Eric went duck hunting in Central Washington with his dad, Rocky and Rocky’s son. The four had been doing this for 40 years. At day’s end, they had a sack full of ducks. As they cleaned the birds, in a farm field off a dirt road, two game wardens pulled up in a truck.
The wardens said that when field cleaning, hunters must leave a wing or the duck’s head behind, as evidence of what happened. The four hadn’t done that, so each would be getting a ticket. Eric’s father lit up. He started to argue. The wardens argued back. Eric’s uncle joined the din.
“Then it suddenly hit me,” Eric wrote. “I could get us out of this.”
He knew how to deal with law-enforcement officers. He had been doing it in court for years. So Eric started to talk. And as he did, his uncle quieted. His dad did, too. Eric talked of how much the four of them respected the outdoors … the birds were legal … if they had made a mistake, it wasn’t intentional.
“I could feel I was getting to them, just the way I felt it when I was getting to a jury.”
The wardens softened. OK, they said. Only one hunter will get a ticket. Hearing this, Eric’s dad lit up again. But Eric knew he had them. Years before, his uncle had taught him that law-enforcement officers are like everybody else. When they go home at night, they want to feel good about what they did that day.
Eric talked of how special these hunting trips were to the two fathers and their sons. The wardens didn’t want to spoil that. The wardens didn’t want to force the four to tap one person to take the ticket.
The wardens huddled for two minutes. Then they returned with their verdict. It was an acquittal — no tickets at all.
Eric realized he had finally been able to show his dad what he had been doing all these years. “And, I won. And it had been for people that I really cared about. That was why I had become an attorney in the first place.”
Times researcher Miyoko Wolf contributed to this story. Ken Armstrong: 206-464-3730 or firstname.lastname@example.org