EVERETT — A Snohomish County judge was expected to rule Wednesday morning whether a prosecutor’s review of emails between a divorce lawyer and a former Monroe police sergeant accused of sex crimes was a harmless intrusion on attorney-client privilege or an error that has hopelessly undermined the defendant’s right to a fair trial.
Carlos Alberto Martinez, 61, is facing multiple counts of child molestation and other offenses. His lawyer, longtime Everett defense attorney Mark Mestel, has asked Superior Court Judge Michael Downes to dismiss the case.
Mestel maintains that Martinez’s constitutional right to legal counsel was violated Sept. 10 when deputy prosecutor Lisa Paul reviewed emails between Martinez and a civil attorney. The lawyer had represented the defendant in a 2010 divorce and the emails were among thousands of records seized under a search warrant.
Downes last week ruled that Paul did not have permission to review the material.
“It is up to the state to show there is no prejudice in this case,” Mestel told Downes during a hearing Tuesday.
He said case law is clear that prosecutors must demonstrate beyond a reasonable doubt — the same legal standard they must prove to win a conviction — that Martinez’s rights to a fair trial were not compromised. That’s impossible, Mestel said, because there is no verifiable way to show which emails Paul examined.
A Lynnwood police detective’s forensic examination of the digital records Paul reviewed didn’t resolve the controversy.
Paul on Tuesday continued to maintain that Mestel had given her tacit approval to examine the emails, all of which focused on Martinez’s divorce. The prosecutor said she stopped looking when one of the messages she saw made reference to a videocassette tape.
The prosecutor said she was concerned that email might be discussing a video recording that Martinez allegedly made of a then-teenage girl as she stepped from a shower. The defendant is charged with voyeurism and possession of child pornography in connection with that recording.
“I’m the one who brought this to the attention of everyone. There’s nothing sneaky going on,” Paul said.
Mestel on Tuesday made clear he wasn’t questioning Paul’s motivations.
“I’m not asserting anything was done maliciously,” he said.
Downes spent part of Tuesday making a careful record of the materials he’s reviewed. In addition to pleadings filed by both sides, he’s pored over thousands of emails, now under seal to protect the defendant’s attorney-client rights.
He told lawyers they can expect his decision Wednesday. Aside from dismissing the charges or letting the case proceed to trial as is, the judge also could rule that Paul must step aside and another deputy prosecutor take over. Trial is now scheduled for later this month.
Martinez is accused of starting up a sexual relationship in 2003 with a then-14-year-old girl. He’d met her years earlier when he taught drug education for the girl’s elementary school classes in Monroe. Now in her 20s, she told investigators that the pair would sometimes have sex while Martinez was on duty. Martinez resigned from the Monroe Police Department in 2009. That same year, he separated from his wife and moved to Texas with the girl. She went to police in Texas in 2011. Martinez told investigators he didn’t start having sex with her until she was 18.
Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.
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