EVERETT — Dozens of criminal cases could be in jeopardy after the Snohomish County sheriff concluded two of his deputies cut corners, disregarded constitutional rights and were dishonest about it.
Both deputies were fired last month.
In a move the incoming sheriff called “outrageous,” the Snohomish County prosecutor sent letters notifying defendants of allegations against the deputies, months before the current sheriff’s internal investigation was completed.
“That’s just not OK in my world,” Sheriff-elect Adam Fortney said. “That is a complete lack of due process.”
The warnings and the firings were fallout from an illegal warrantless search and a subsequent cover-up by deputies Matt Boice and Evan Twedt in June 2017, according to termination letters written by outgoing Sheriff Ty Trenary.
According to the prosecutor’s office, a total of 77 cases involving Boice and 96 involving Twedt could be affected.
At the time Trenary fired the deputies, Boice was serving as the elected president of the sheriff’s deputy union. Days later the incumbent sheriff lost his reelection bid to the previous union president, Sgt. Fortney.
Boice has said he was fired for supporting Fortney.
In an interview with The Daily Herald last week, Fortney questioned the outgoing sheriff’s conclusions and said he planned to give the case another look when he takes office. He said he has not decided whether he will rehire the two deputies, who were often his companions on the night shift.
He does not feel they were dishonest, and if they had been, he said he would have sided with Trenary.
“I just don’t think that’s an accurate assessment of what happened,” he said.
For now, the names of both deputies appear on a running list the county prosecutor keeps of officers and others in law enforcement who are caught being untruthful. In the past five years, the Snohomish County list has nearly doubled in length, from 43 names to 79.
Fortney said as sheriff it will not matter to him that Boice and Twedt may be on a so-called “Brady list,” a kind of scarlet letter for police officers with a documented histories of lying.
Under a landmark 1963 ruling in the U.S. Supreme Court case Brady v. Maryland, prosecutors must tell the defense about any evidence that could exonerate the accused. Failing to disclose Brady material can lead to a charge being dismissed or a conviction reversed.
Having a “Brady cop” as a witness does not make a trial unwinnable for the state, but it can create an extra hurdle for prosecutors seeking to meet the burden of proof.
Often, a judge will find it’s not relevant to a specific trial and won’t allow it in court. But if it is relevant, the officer can be questioned about the lie in front of the jury — for example, “Officer, you lied to your own department to protect yourself, in spite of swearing an oath to serve the public. So why should we believe you would not lie to put someone in jail?”
Early in the morning on June 10, 2017, deputy Boice pulled over a car going 10 mph over the speed limit while doing contracted work for the City of Snohomish. Twedt arrived to help arrest the driver for a drug pipe sitting in open view on the passenger side. Twedt found meth in the man’s pocket and a baggie of ammo in the driver’s door. Boice asked for the suspect’s permission to search the car, but he declined to grant it.
At some point Twedt looked through the trunk anyway, in violation of sheriff’s office policy and case law. In Trenary’s summary of the internal investigation, he wrote Boice and Twedt later claimed it was OK because it was an “inventory search.” The deputies found a shotgun, and as a felon, it was a crime for the driver to have a gun.
According to sheriff’s office policy, “All property in an impounded vehicle shall be inventoried and listed on the vehicle impound form. A locked vehicle trunk shall not be opened, even if it may be opened without a key …”
That statement is deep in a sheriff’s policy manual written by the national law enforcement policy company Lexipol, on page 348 of 1,703. In another reference on page 616, it says to complete an impound form whenever a vehicle is towed as evidence, but it doesn’t specify what to do with items in the trunk.
Fortney blamed a lack of effective training, not dishonesty. In an email sent to media during his campaign, Fortney wrote: “Since this became an issue it has been learned that MOST OF PATROL WAS NOT AWARE OF THIS CHANGE IN POLICY.”
At a pre-disciplinary hearing, a union attorney argued Boice and Twedt were never given bulletins or training pointing out the change in standard procedure that came with a new, massive manual in 2016. According to Boice, his supervising sergeant had been notified of the shotgun found during an inventory search, and that supervisor approved both deputies’ case reports, with a plan to let another deputy write up the search warrant as practice.
The author of the warrant, a young deputy who was still being trained, was later fired in an unrelated incident for dishonesty.
“There is absolutely no evidence to show that either Deputy Boice or Deputy Twedt had a motive to cover up an unlawful search, lie in their police reports, or had a vendetta against this particular suspect,” reads a statement presented on Boice’s behalf at the pre-disciplinary hearing. “Neither Deputy Boice nor Deputy Twedt have a history of misconduct in the course of conducting their investigations, indeed, quite the opposite, as both deputies have an excellent reputation in the Sheriff’s Office … for being ethical, thorough, and having a high conviction rate.”
Boice had been disciplined twice in the preceding two years, Trenary wrote, “once for a preventable collision and the other for failing to document use of force as required by policy on an incident.”
He also was named Patrol Deputy of the Year in 2016.
In June 2019, a sheriff’s lieutenant overheard two deputies talking about a past conversation with the deputy who wrote the warrant. That young deputy did not understand why he had to get a judge’s permission to search for a gun in the trunk when he already knew there was a shotgun inside.
The concerned lieutenant immediately made a report to the undersheriff, fearing he’d just overheard a serious violation of a man’s rights.
The investigation suggested “someone” told the younger deputy that he could not mention a shotgun in the search warrant affidavit. Fortney said his “jaw hit the floor” when Trenary’s letter did not name that person, when it’s such a critical piece of the puzzle.
One of the two termination letters goes on to say Twedt helped the deputy to write the warrant, giving him templates, checking his work and suggesting edits.
“Accordingly, you would have been well aware (the young deputy) had not referenced in this paperwork that you and he had already searched the vehicle, including the trunk, and found a shotgun. The daily training documents, prepared by (another deputy) at the time, affirms that the coaching … was done by you,” Trenary wrote in the termination letter to Twedt.
Trenary wrote both deputies knew better.
Twedt had been a Snohomish County deputy for more than four years.
Boice’s resume notes he’s a 12-year veteran of the sheriff’s office. In an interview last year for a Master Patrol Deputy position, Boice correctly answered questions about the legal way to search trunks, according to Trenary’s letter.
“Your answer also suggested using an inventory as a means to get the evidence from an illegal search admitted as evidence anyway, literally saying, ‘wink, wink,’” reads a footnote in the letter to Boice.
A lieutenant warned Boice that was immoral, the letter says.
“The warrant requirement is more than just a legal technicality,” Trenary wrote. “It is not an understatement to say it is the underpinning of our freedom as citizens.”
One of Trenary’s final acts as sheriff was to give the deputies the strongest possible discipline.
“Ultimately, I find that your actions strike at the heart of the trust a citizenry puts in its law enforcement officers, as well as the trust I must have in you to perform your job as a Sheriff’s Deputy,” he wrote. “When I cannot trust you to honor the clear contours of our policy and Constitutional law, or further to come clean when your actions have crossed these lines, your ability to serve as an officer is severely impaired.”
Fortney filed a two-page memo in September in which he asserted that few deputies knew of the policy. Later that same month he filed a complaint with Snohomish County Human Resources, in the midst of the election campaign, in which he said Trenary had put him under an internal investigation for speaking up.
Fortney asked to have the investigation into him closed.
“If they are not willing to do this, they should open up an internal investigation on every deputy that served in patrol since this policy went into effect,” he wrote.
The investigation found Fortney violated two policies, he said. According to the new sheriff, however, the investigation showed some deputies knew the official policy, some didn’t, and many only had a vague understanding of it. He maintains the sheriff’s office could have done a better job explaining the policy in the first place.
“I’m not saying Matt and Evan did everything perfect, I’m not saying that,” Fortney said. “I’m saying (to sheriff’s office leadership) take some dang responsibility.”
The envelopes began hitting mailboxes in August, with a return address in the Snohomish County Courthouse.
“On August 19, 2019,” Snohomish County Prosecutor Adam Cornell wrote, “it was brought to my attention … the Snohomish County Sheriff’s Office … began a preliminary investigation into allegations that include dishonesty or untruthfulness involving … Deputy Evan Twedt.”
The memos are commonly known as Brady letters. In Snohomish County their technical name is a Potential Impeachment Disclosure notice. It is the responsibility of police departments to forward reports of internal ethics violations to the prosecutor’s office to be considered for listing.
For many cops, the mere mention of a Brady list touches a nerve. It’s a stain that can linger for a lifetime, even for officers with otherwise outstanding records.
Though it may not be a career-ender, “For a deputy sheriff or police officer, it’s everything, because to them it’s their integrity,” Fortney said. “It’s basically them getting labeled a liar.”
All lies fall on a spectrum. There’s lying in a traffic ticket case, and then there’s lying in a sex crime investigation. But the list is the list. It doesn’t rank the gravity of the lie.
Fortney said he “can’t stand” the part of Cornell’s new policy including officers on the list even before the allegations against them have been substantiated, like he did with Twedt and Boice.
“Every person we deal with on the street, there’s due process involved once we get into the judicial system,” Fortney said. “I think it’s horrible to not give police that same level of due process. … Why not finish the investigation first?”
In a separate interview, Cornell said it’s a decision backed by case law cited in the policy paperwork. It’s difficult and perhaps impossible to know when credibility issues could become key on appeal.
“Thus, we should err on the side of disclosure,” says the prosecutor’s policy.
The two deputies continued to patrol the streets more than two years after the alleged misconduct and continued to work many cases akin to the one in question.
This year, one of Cornell’s first actions in office was to create a committee of senior deputy prosecutors who decide which officers and deputies go on the list. He said the committee plans to evaluate this case in the coming days.
Generally, the policy says an officer belongs on the list when there is a sustained a finding of misconduct, a criminal conviction, a pattern of performance errors or bias — the last of which is a new piece of the policy under Cornell. The committee advises the top prosecutor, and the final decision falls to the office’s elected leader.
Credibility can be about more than mere honesty, the policy says. It can also relate to “performance deficiencies,” as in repeated missteps.
If Fortney overturns Trenary’s finding, Cornell could reconsider his decision to include the deputies on the list.
Fortney has made no promises to the fired deputies, except to say he’d give their case another look in January, he said.
“There’s two sides to every story,” Fortney said. “And when I read Ty’s termination letter, and if I took that at face value, I’d say, ‘No way those guys can work here. There’s no way. Nuh uh.’ There’s more to that case than what’s in that letter.”
Reporter Zachariah Bryan contributed to this story.
Caleb Hutton: 425-339-3454; firstname.lastname@example.org. Twitter: @snocaleb.