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Published: Tuesday, May 29, 2012, 11:26 a.m.

State lawyers challenge secret court proceedings

SEATTLE -- A defense lawyer in Eastern Washington was reading a detective's statement in his client's drug case when he came across a curious line. In asking to search the man's house and cars, the detective revealed that he had already seen the defendant's bank records.
That's odd, thought the lawyer, Robert Thompson of Pasco. There's no search warrant for the bank records. How'd he get them?
The answer -- with a subpoena secretly issued by a judge -- provides a window into the little-known use of "special inquiry judge proceedings" in Benton County and across the state. Prosecutors who use them say the proceedings are authorized by state law, make for more efficient investigations and have plenty of judicial oversight, but Thompson and other defense attorneys say they raise questions about privacy, accountability and the open administration of justice.
"The public has a right to know that the government is doing all this sneak-and-peek stuff," said Thompson's co-counsel, Lenell Nussbaum of Seattle. "These special inquiry files are not public. How does the public know this is happening? What happens to the evidence that was taken?"
The proceedings, created by the Legislature in 1971, function as grand juries without the grand jury: At the request of a prosecutor, a judge can secretly hear from witnesses, review evidence or issue subpoenas based on a reasonable belief that someone "may be able" to provide testimony or evidence. The proceedings are used as investigators try to develop probable cause to charge someone with a crime.
Witnesses can be compelled to testify, but are immune from prosecution for what they say -- important in complex public corruption or organized crime investigations. If no charges are ever filed, no one aside from those involved ever learns the proceedings occurred.
The special inquiry law doesn't require sworn statements or a finding of probable cause that a crime has been committed, as the issuance of a search warrant would. The Benton County Prosecutor's Office says its attorneys are typically under oath when they appear before special inquiry judges.
However, the subpoena issued by the judge in Alfredo Ahumada Ozuna Jr.'s case was not based on any sworn statements, nor did the judge make any findings about why the subpoena for his bank records was necessary, according to an unsealed transcript of the special inquiry proceeding.
That raises state and federal privacy concerns, Nussbaum and Thompson said. The 4th Amendment to the U.S. Constitution says people have the right to be secure in their "persons, houses, papers, and effects, against unreasonable searches and seizures ... and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation."
Nussbaum and Thompson want Ahumada's felony drug and weapons charges dismissed. Their public records request to the Benton County Prosecutor's Office turned up two thick binders' worth of other cases in which detectives routinely asked prosecutors to get them secretly-issued subpoenas for cellphone, email, mortgage and banking records in drug, fraud, identity theft, rape and other investigations.
The lawyers say the regular use of special inquiries amounts to an end-run around the Washington Constitution's requirement that people not be disturbed in their private affairs without "authority of law." Typically, that means a search warrant, but prosecutors say the special inquiry statute also meets that standard.
The state Supreme Court has held that people have constitutional privacy interests in their bank and phone records. No appeals court in Washington has reviewed whether special inquiry subpoenas satisfy the Constitution's privacy protections or open-government principles, Nussbaum said.
Search warrants, the affidavits that support them, and lists of the evidence seized eventually become public, even if they're filed under seal to protect an ongoing investigation. That's a check against police powers.
But there are strict requirements for when search warrants can be sealed, said Marilyn Brenneman, a former longtime King County deputy prosecutor. Special inquiries can allow police to investigate without alerting the suspect, provide a secret venue for scared witnesses to tell their story, and -- importantly -- protect people from being publicly humiliated for something they didn't do, she said.
Sometimes, she said, information from a confidential informant might provide police with enough to get a search warrant. Using a special inquiry subpoena instead to secretly obtain bank or other records can help verify the informant's information and prevent authorities from filing a public search warrant affidavit that might falsely impugn someone.
"It can protect the accused, perhaps unbeknownst to them, until the prosecutor can determine whether there's any merit to the investigation," she said.
The special inquiry law was a response to a corruption scandal involving the Seattle police, including the former chief, and the former King County prosecutor. When Chris Bayley was elected King County prosecutor, he organized a grand jury to investigate.
Dave Boerner, a semi-retired Seattle University criminal law professor, was a deputy King County prosecutor then. He recalled that the grand jury was cumbersome, slow and expensive, and he joined his boss in urging lawmakers to adopt a new type of proceeding -- the special inquiries.
Although grand juries are still allowed under Washington law, prosecutors rarely use them because special inquiries are easier. That said, counties use special inquiries to varying degrees.
"It would be a highly unusual situation where we would use that proceeding," said Pierce County Prosecutor Mark Lindquist. "We advise law enforcement to always get a warrant. That's the safe approach."
King and Snohomish counties regularly use the special inquiries, typically in complex investigations, prosecutors there say. Snohomish County recently used a special inquiry to compel the testimony of the 5-year-old daughter of a police officer after she saw her little brother shoot her older sister with her dad's gun. The officer, who now faces a manslaughter charge, had refused to let the girl speak with investigators.
The King County prosecutor's office handles about a dozen special inquiry cases a year.
King County has used the process in high-profile matters, including in the case of Martin Pang, convicted of setting a fire that killed four firefighters in 1995. Prosecutors used a special inquiry judge to quickly subpoena airline records that could establish whether Pang was out of state at the time of the arson. More recently, they used it to obtain bank records in the case of Silas Potter, a former Seattle schools official who has pleaded not guilty to charges he stole $250,000, said Ian Goodhew, deputy chief of staff to King County Prosecutor Dan Satterberg.
If anything, the process involves more oversight than a grand jury, because a judge is involved, rather than just a prosecutor alone with grand jurors, Goodhew said.
Nussbaum said there's a crucial difference between a grand jury and special inquiry: The grand jury itself considers evidence, and thus provides more of a check on investigatory powers; the special inquiry judges in Benton and other counties often authorize the records to be turned over to investigators directly.
Furthermore, the Benton County Superior Court may not be strictly following the statute in terms of how special inquiry judges are appointed and who attends the proceedings, Nussbaum said.
Brendan Siefken, a Benton County deputy prosecutor who handles special inquiries, says the county averages about three or four a month. Most of the time, the records concern an email or cellphone account associated with a crime before the police have identified a suspect, he said. Sometimes, he said, a judge denies the request or asks him to come back with more information.
Jim Egan, a longtime Kennewick defense lawyer, said he's had a few cases that involved special inquiry subpoenas. He's had no luck asking judges to suppress the evidence obtained.
"I don't think the special inquiries are set up to be a substitute for the search warrant process," Egan said. "It doesn't seem to me the intent was to give police officers access to records they don't otherwise have the right to get."

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