Suspect freed after ‘egregious case’ of prosecutor misconduct

EVERETT — A judge called the prosecutor’s actions “uniquely egregious.”

In an exhaustive and sharply worded 214-page decision, Superior Court Judge Anita Farris accused a Snohomish County deputy prosecutor of withholding and destroying evidence, threatening a witness into testifying, and repeatedly lying to the court.

As a result, Farris in June dismissed the case and ordered the release of a suspect in the robbing and shooting of a teenage boy.

On Dec. 5, Farris ordered sanctions against deputy prosecutor Michelle Rutherford, for acts of willful misconduct. According to the decision, Rutherford will have to apologize to the defense attorney, the detective who worked on the case and the colleagues who defended her in court, including her boss, Prosecutor Adam Cornell. She also will have to take classes in legal ethics and read up on case law and professional standards.

“Rutherford’s acts interfered with the administration of justice,” Farris wrote. “They resulted in a serious violent crime during which a human being was shot being decided based on her conduct rather than the merits of the charge.”

In a statement, Cornell said he will conduct a “thorough and objective examination” to determine if any further action is needed. That could take weeks, he said.

“On very rare occasions we fall short of our obligations,” he wrote. “When we do, we make every effort to make things right. (This) was such a case. The errors in the case were unusual; both atypical of the assigned prosecutor’s work and inconsistent with the practices followed by our attorneys.”

Rutherford, who has been with the prosecutor’s office for five years, remains employed with the office. According to court documents, she was taken off trial rotation. She could not be reached for comment.

The robbery

The defendant’s alleged crime wasn’t an uncommon one: a drug rip off.

On Jan. 28, a teenage boy called 911, saying he had just been jumped by a group of men in the parking lot of Hazelwood Elementary east of Lynnwood.

According to authorities, the boy was approaching a silver Hyundai when he was surrounded by several men, who took his belongings, including a half-pound of marijuana. The boy took off running and, after an exchange of gunfire, was shot in the leg.

He didn’t know any of his assailants, the boy told detectives. He used Snapchat to set up a deal with a woman he knew from when they attended Mountlake Terrace High School. She agreed to buy some marijuana, and said she would be in a silver Hyundai, according to court papers.

Sheriff’s deputies found eight bullet casings at the scene — six 9mm and two .380 — and a trail of blood leading out to the bus stop, where the boy said he noticed his injury and then was transported to Harborview Medical Center in Seattle. Deputies used security footage, social media and witness interviews to confirm details of the robbery.

The man who would become the defendant was identified as a suspect early in the investigation. He was the woman’s boyfriend, and police believed he was involved in a string of unrelated marijuana shop robberies in the region. His Snapchat profile featured a silver Hyundai, like the one seen at the shooting. He was 18 at the time.

The woman, who also was 18 at the time, later confirmed her boyfriend was at the scene. According to her, he typically carried a firearm, but someone else shot the boy. Detectives later found a Ruger 9mm handgun under the woman’s mattress — the same one the man carried the night of the robbery, she reported.

The man was charged in Snohomish County Superior Court on Feb. 28 with first-degree robbery. His charges later were amended to include unlawful possession of a firearm, based largely on statements made by his girlfriend.

The woman also was arrested and charged. She eventually pleaded to second-degree robbery and criminal assistance.

None of the other men who allegedly were involved in the robbery, including the one who shot the boy, have been arrested.

Evidence withheld and destroyed

Leading up to the trial, little was revealed to the defense about the investigation, despite defense attorney Elbert Aull repeatedly sending emails to Rutherford, asking for DNA and fingerprint results from the crime lab, and expressing difficulties in interviewing the primary witness — the defendant’s girlfriend.

In fact, the woman wasn’t included on the witness list until right before the trial began, when she pleaded guilty. And it wasn’t until then that Aull received a two-hour recording, in which the woman was interviewed by detectives. Then, after the trial already commenced, Aull obtained a 33-page detective’s report that hadn’t been released in the pretrial discovery process.

It was the first time the defense became aware of many details of the case. The woman had changed her story from when she was first arrested, and gave different names for the three other men involved in the robbery. In the report, detectives wrote that they recovered another gun that could have been connected to the shooting, from another man who the woman hadn’t named at all.

The new information unveiled a wealth of potential suspects who the defense never had time to investigate. Aull contended that the defense couldn’t adequately prepare for the trial.

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.

Rutherford defended her actions, explaining in court documents that life circumstances had delayed her preparation for trial. That included taking time off for a medical procedure and, separately, bereavement for an unexpected death in the family.

When she returned to work, she was playing catch up, she wrote. She acknowledged that she assumed the trial would be delayed, giving her more time to prepare.

But, with what little information the defense had, it appeared Rutherford had yet to gather enough evidence to get a conviction. Judge Farris wrote that “it would have been close to malpractice” if the defense agreed to continue the case.

In her decision, Farris noted that Rutherford “gained numerous tactical advantages” by delaying the entry of evidence.

“She later admitted she intended to spring the new witness testimony, new testing and new physical evidence on the defense in the middle of trial,” Farris wrote.

After the trial commenced, Rutherford had detectives take a gun — the same one found under the woman’s mattress — out of the crime lab and test fire it. Under Washington state law, firearms need to be test fired to be entered as evidence at trial.

But, the defense attorney pointed out, the gun had yet to be tested for DNA or fingerprints, and the process of test firing likely ruined any samples that could have been taken.

Effectively, evidence had been destroyed.

The lab results, if they tied someone else to the gun, could have helped the defense. Moreover, according to Farris’ decision, Rutherford likely had knowledge of phone calls that the defendant made from the jail, in which he said his fingerprints wouldn’t be on the gun.

Farris wrote that Rutherford also apparently had threatened to charge the defendant’s girlfriend with no less than first-degree robbery, unless she testified against the defendant. Shortly after the threat, the woman reportedly gave a statement.

On June 7, while he was on vacation, Cornell called into the courtroom to ask that the case be dismissed, what he called “an extraordinary and rare remedy.”

Judge Farris dismissed the case with prejudice, meaning it can’t be prosecuted again.

A turn for the worse

In determining sanctions, Farris wrote that she gave Rutherford “every benefit of the doubt.”

“I recognize that prosecutors and public defenders may be overworked, overwhelmed and operating in a stretched system often lacking the resources to handle every case in an ideal manner,” she wrote. “They may all sometimes drop the ball, forget to send discovery, or not get around to it. They may miss deadlines for a variety of reasons, including simply just because they are human. Such human mistakes are not grounds for individual sanctions.”

But, Farris wrote, she had never seen so many violations related to the process of handing evidence over to the defense.

Nor could she find another case in the state in which a prosecutor willfully destroyed evidence without telling the defense.

The purpose of her decision, Farris wrote, was to “connect the dots” on what went wrong.

While Farris commented that Rutherford handled the pretrial process poorly, she focused much of her attention on what happened during trial — and after, when things “took an exponential turn for the worse.”

In briefs written after the trial, Rutherford made several false and misleading statements in an attempt to explain away her actions, Farris wrote.

Specifically, Rutherford claimed she didn’t know the gun had not been tested until after the trial began, or that test firing could ruin DNA and fingerprint samples. But during the trial, she indicated she made plans to test fire the gun before proceedings began, and she said she knew evidence potentially could be destroyed in the process, according to transcripts.

Farris noted that Cornell relied on Rutherford’s misleading statements to defend her during a sanctions hearing.

“The hubris to use one’s boss to proffer false sworn declaration statements was alarming,” Farris wrote. “This indicated that DPA Rutherford was confident no one in her office would question what she claimed or take the time and effort to really check her statements against the record. She was correct in that assumption.”

When Farris pointed out the inconsistencies in Rutherford’s statements, the deputy prosecutor walked back her explanation.

“This was embarrassingly like a child being told their story would be checked out and then coming skulking back later to tell a truer story,” Farris wrote.

In his statement, Cornell said Rutherford didn’t have an opportunity to defend herself against accusations that she lied in statements made after the trial. In his own examination of the case, he said he would allow Rutherford the chance to speak.

Farris said that, ultimately, the onus will be on the prosecutor’s office to correct Rutherford’s behavior.

“This decision is intended as a reality check,” Farris wrote. “If someone in addition to me who is in DPA Rutherford’s office does not tell her to knock this kind of behavior off, it will continue and get worse until she gets herself in real trouble. No one did DPA Rutherford any favors by not calling out her deliberate misconduct after trial. When no one told her to stop, her unchecked behavior escalated at the final sanctions hearing and now she finds herself in worse trouble.”

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.