Olson may get new hearing

Published 11:13 pm Friday, November 9, 2007

Embattled Everett City Councilman Mark Olson, who admitted in September he’d violated conditions of a 2003 drunken driving prosecution and agreed to an extended ban on consuming alcohol, is now trying to get another judge to review his case.

He’ll likely get his way.

A Superior Court judge on Thursday is scheduled to hear an appeal from Olson, who alleges that Judge Jay Wisman of Snohomish County’s Cascade District Court in Arlington should have stepped aside and not heard a review of his deferred prosecution status.

A probation officer asked for a judge to look into an allegation that Olson violated a court order that he stay sober for five years. Olson’s alcohol consumption became public when a search warrant was filed in connection with an allegation that he raped a woman after an evening of drinking in Everett.

Before the hearing, a lawyer for Olson filed paperwork asking Wisman to disqualify himself from handling the case. The judge declined.

Wisman ruled that Olson must comply with several conditions of his deferred prosecution in the four-year-old drunken driving case, including not consuming alcohol until Oct. 7, 2010. The drinking ban originally was to have lasted until 2008.

Olson’s attorneys argued that his former lawyer and a therapist misinterpreted the court order and gave Olson bad advice.

Wisman said that didn’t make any difference. He extended the drinking ban and ordered more drug and alcohol evaluations for Olson.

“Judge Wisman never had authority to issue those conditions, so they’re not legally binding for that reason,” said Diana Lundin, one of Olson’s Bellevue attorneys.

Lundin and attorney Bill Bowman filed an appeal last month on Olson’s behalf, seeking an order requiring another judge to hear the case.

Olson, 52, also is a lawyer. He likely will get another hearing before a new judge because Wisman’s own attorney, the Snohomish County prosecutor’s office, agrees Wisman should not have heard the case in September.

Bowman’s request that Wisman disqualify himself was made properly under court rules, Olson’s lawyers said in the appeal.

Under the law, a defendant can ask for disqualification of one judge without stating any reason. It must be done within 10 days of the judge being assigned to a case.

Prosecutors would be hard pressed to argue that Wisman was right when he didn’t step aside, deputy prosecutor Thomas Curtis said. In Olson’s case, the disqualification request came on the 10th day, he added.

“As we count it, it was timely and we can’t say it wasn’t,” Curtis said.

Snohomish County Superior Court Judge Kenneth Cowsert is scheduled to hear the appeal. Curtis said he expects the judge to grant Olson another hearing.

District Court judges in Everett already have stepped aside to avoid a potential conflict. It’s likely a judge from either the South division in Lynnwood or the Evergreen division in Monroe will handle a new hearing for Olson, Curtis said.

Olson negotiated a deferred prosecution instead of jail time in 2003. Under a deferred sentence, a defendant can avoid jail and even a record of conviction by complying with court-ordered conditions.

As a part of his agreement, Olson signed a document vowing to abstain from alcohol until 2008 and undergo treatment.

In September, Bowman argued that Olson’s resumption of drinking happened because of bad advice, not Olson thumbing his nose at the court.

Another judge could view the case differently and not impose new conditions, Lundin said.

“We never felt Judge Wisman had authority to hear the case in the first place, and what’s why we pursued the action we did,” Lundin said.

In court in September, Bowman said Olson was willing to take responsibility for the error and suffer the consequences. Whether there should be new sanctions would be up to the new judge, Lundin said.

In 2003, Olson was allowed to seek treatment after he was arrested on the Tulalip Indian Reservation. He was taken into custody after he nearly hit a tribal police officer who had stopped another vehicle, police said. A test allegedly showed Olson’s blood-alcohol level was nearly twice the legal limit.

Olson’s current legal troubles started in June after a woman told Everett police that she believed Olson sexually assaulted her at his downtown Everett law office after drinking in Everett restaurants.

The Washington State Patrol investigated, and the Skagit County prosecutor is reviewing the case to determine whether charges are warranted.

Reporter Jim Haley: 425-339-3447 or jhaley@heraldnet.com.