By Diana Hefley Herald Writer
Seth Fine would have been happier if he had been wrong.
The Snohomish County deputy prosecutor feared convicted sex offender Jamie Wallin would continue to prey on children if he were freed from prison. That’s why Fine fought so hard to keep Wallin behind bars after an appeals court tossed out a conviction that should have kept Wallin in prison for life.
Fine lost. So did three young Snohomish County girls. Wallin molested them just nine months after he was freed.
“His pattern was quite clear and so predictable,” Fine said. “This was a time I had hoped I would be wrong.”
Wallin, 33, had gone to prison in 2003 for raping a young girl. A prior sex offense gave him a mandatory life sentence. But the state Court of Appeals overturned the conviction, ruling that evidence used against Wallin, including a confession and graphic pictures, had to be tossed out because of an improper police search.
At the heart of Wallin’s case is the long-fought tug-of-war between preserving a person’s constitutional rights and protecting innocent victims from criminals. Wallin’s case also highlights what many prosecutors contend is a flaw in Washington law that lets guilty people benefit from what would be considered harmless errors under federal law.
Wallin was sentenced to life without parole in February. He was retried for the 2003 assault last year after the victim stepped forward and told police what Wallin had done to her.
“This is the most controversial context we could put it in,” said John Junker, a law professor at the University of Washington. “It’s all a balance for the need for privacy and the need for criminal control. The courts must balance back and forth.”
Wallin benefited from the state’s rigid application of the so-called exclusionary rule, Fine said.
When applied correctly, the rule prevents police from using evidence they obtained through illegal searches.
In Wallin’s case, Fine argued that an error of the court, not police misconduct, invalidated the search of Wallin’s apartment. Everybody involved — including Wallin and one of his former attorneys — believed that state probation officers had legal authority to search. Turns out an error was made by the court in establishing Wallin’s term of probation.
State courts should consider exceptions to the rule, allowing evidence where there is no deliberate misconduct, as the U.S. Supreme Court has done, Fine said.
Defense attorneys and civil rights advocates say the exclusionary rule protects civil rights and shouldn’t be eroded by exceptions.
Privacy must be guarded and the exclusionary rule is one way to make sure that happens, said Doug Honig, communications director for the Washington chapter of the American Civil Liberties Union.
A right to privacy
The exclusionary rule has been hotly debated during its nearly 100-year existence. Many argue the rule is necessary and exceptions only eat away at the Fourth Amendment, which guarantees protection against unreasonable searches.
While the U.S. Supreme Court has ruled in favor of some specific exceptions, the state’s constitution and Supreme Court have been more protective of people’s privacy rights, according to Tom Conom, a Lynnwood attorney with the Washington Association of Criminal Defense Lawyers.
“In order to enforce violations, there has to be consequences. The consequences are that evidence gets thrown out,” Conom said. “Our state doesn’t allow law enforcement to skate on this.”
The exclusionary rule may come at a price, but it also underscores how serious the right to privacy is taken, Junker said.
“While it seems Draconian, it is understood to be the real remedy to police misconduct,” he said.
Carol Chase, a law professor at Pepperdine Law School in California, disagrees.
“The law is so convoluted it’s difficult for an officer to know what is legal and what isn’t. I think honest mistakes are made in the heat of the moment,” Chase said. “Why does it make sense for a criminal to go free if a police officer makes a mistake?”
Bad conduct should not be rewarded — for criminals or police who bend the rules, she said.
In a study, she and two colleagues found there was little proof that the excluding evidence was an effective deterrent to illegal searches. Instead of the evidence just being tossed, Chase advocates prosecuting the offending officers like anyone else who breaks the law. A person who is subject to an illegal search also should have a way to seek compensation, Chase said.
Wallin had a history of sexual assault against young girls.
He was convicted of child molestation in 1994. He served more than four years in prison. Once released, he landed in front of a Snohomish County Superior Court judge again, this time for violating the conditions of his release by courting a 16-year-old barista. He was sentenced to two months in jail and the judge extended Wallin’s supervision by the state Department of Corrections to the maximum, 10 years.
Four years later, Marysville police received a complaint that Wallin was taking photographs of teenage girls from his apartment window. Police relayed the information to Wallin’s community corrections officer.
Several corrections officers searched Wallin’s apartment. They found child pornography, according to court documents. The corrections officers took Wallin into custody and called Marysville police, who obtained court-approved search warrants for Wallin’s home, computer and camera. Police found thousands of images of child pornography, including what appeared to be photographs of a naked young girl taken at Wallin’s apartment, court records show.
Wallin admitted to having sexual contact with the girl, who was 9. He was charged with child rape, molestation and possession of child pornography.
His trial attorney fought to keep the evidence out of court. He argued that the judge didn’t have a right to extend Wallin’s probation. The law that allowed the extension applied only to crimes committed after July 1996. Wallin was on community supervision for crimes committed between 1988 and 1990.
Wallin’s lawyer argued community corrections officers didn’t have the authority to search Wallin’s apartment. Because police obtained search warrants based on what corrections officers saw, all the evidence was “fruit of the poisonous tree” and had to be tossed, the lawyer argued.
Snohomish County Superior Court Judge Ronald Castleberry refused to throw out the evidence, saying the search community corrections officers conducted on Wallin’s apartment was based on what they believed to be a valid court order and they were entitled to rely on the order.
Wallin was found guilty and sentenced to life in prison without parole under the two strikes law for sex offenders.
He challenged the conviction before the state Court of Appeals. His attorney argued the evidence should have been thrown out under the exclusionary rule.
The court agreed. In its decision, the state Court of Appeals cited the state’s constitution, which says that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Three more victims
The ruling was frustrating, said Marysville detective Jeff Franzen, who investigated the case.
“There’s no doubt in my mind he committed the crime. I saw the pictures. He openly confessed,” Franzen said. “It’s a tragedy that it had to take three more girls being victimized to put him where he should have been in the first place.”
Last year, Wallin and his then-girlfriend were convicted of numerous sexual crimes against three girls, ages 7, 9 and 11. In 2006, the pair took nude pictures of the girls, inappropriately touched two of them and eventually had sex in front of the children.
Wallin has since been sentenced to life in prison for molesting all three girls. In February, he received yet another life sentence after he was retried for the 2003 assault. The victim stepped forward last year for the first time.
Wallin plans to appeal.
The system is not perfect, Franzen said.
But the system can be improved, Fine argued.
“This was a pretty dramatic application to the exclusionary rule,” he said. “Deterring police misconduct is a valid purpose. That’s not what happened here.”
He believes Wallin’s conviction wouldn’t have been thrown out in any other state.
The appeals court judges wrote that they were bound to follow the precedent established by the state Supreme Court, which has clearly rejected any good-faith exception. They also wrote that “the facts of this case illustrate the need for such an exception.”
The state Supreme Court declined to review the case.
Conom believes the ruling in favor of Wallin was an anomaly.
“This is not the standard practice. This defendant was lucky,” he said. “I don’t think we’ll ever see it again, and it’s not any reason to look at a good-faith exception.”
The outcome was too high a price to pay, Fine said.
“It didn’t have to happen,” he said.
Reporter Diana Hefley: 425-339-3463 or email@example.com.