Prosecutor must withdraw from Jasman case

Judge rules he has conflict of interest

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CBH Columbia Basin Herald Local News

EPHRATA - The Grant County Prosecutor's Office can't continue pursuing its case against former county coroner Jerry Jasman.

Visiting Douglas County Superior Court John Hotchkiss ruled the prosecutor's office has a conflict of interest in its civil suit against Jasman, now chief investigator in the coroner's office.

"The court believes that the coroner is the real party in interest. It is clear that the coroner can hire any individual the elected Coroner chooses, as long as the position and funding have been created by the county commission," Hotchkiss wrote. "Neither the county commission nor the prosecutor has any input into who the elected coroner hires to fill the position ... This is not to say that the coroner can authorize the employee to engage in illegal activities. That will be decided later."

Hotchkiss continued pointing out the prosecutor is obligated to advise the coroner and commissioners, and can't advise the coroner or commissioners while effectively suing the coroner's office, according to the decision.

"As a result of the conflict, this court believes that the Grant County prosecution must withdraw and seek the services of either the Attorney General, another county's prosecuting attorney, or anyone else that does not have this conflict," according to the decision.

The decision stemmed from an attempt by the prosecutor's office to get a temporary restraining order preventing Jasman from signing death certificates. Jasman's previous plea agreement for disorderly conduct prevents him from holding public office.

According to state law, the only person allowed to sign death certificates in cases of unnatural death is the coroner. The only person allowed to fill in for the coroner in the cases is a deputy coroner.

Lee argues the deputy coroner position is a public office, which means Jasman is barred from signing death certificates.

Defense Attorney George Ahrend contends the position is not a public office, and Jasman can hold it.

The attorneys addressed the conflict of interest during the motion for the preliminary injunction. Hotchkiss requested information addressing the issue first, before ruling on whether an injunction should be issued.

Ahrend presented a declaration from John Strait, a Seattle University associate law professor, setting out the reasons why Lee had a conflict of interest. In his declaration, Strait pointed at Coroner Craig Morrison's request to the commissioners to pay for Jasman's defense. The commissioners initially agreed, but later rejected the request based on advice from the prosecutor's office and the Municipal Research Services Center.

"Mr. Lee cannot provide legal advice simultaneously to the Board of County Commissioners with regard to the county acting to indemnify the coroner's office in this litigation - thereby gaining a tactical advantage by imposing the costs of litigation on Mr. Jasman despite the county's indemnification responsibilities - while at the same time acting as the moving party and representing the moving party," Strait wrote.

Strait stated the prosecutor's office should have referred both its motion to prevent Jasman from stopping from signing death certificates and advising the commissioners to independent counsel.

The prosecutor's office argued the only office allowed to bring the particular type of motion, a quo warranto proceeding, according to the prosecutor's office's brief on the conflict of interest.

"The only statutory grounds for replacing a prosecuting attorney with a special prosecuting attorney is when the prosecuting attorney fails, from sickness or other cause, to attend court," according to the prosecutor's office's brief.

The prosecutor's office argued only voters have the right to remove the prosecutor and Jasman does not have the right to chose their prosecutor, according to the brief.

Hotchkiss disagreed, stating he failed to see what it had to do with the ethical issue.

"This is an alleged ethical conflict," Hotchkiss wrote. "The prosecution would not seriously allege that the separation of powers (doctrine) somehow trumps the ethical rules all attorneys must comply with."

The prosecutor's office continued by pointing out Strait has filed four other declarations in Grant County cases claiming a conflict of interest, and each time the judge has ignored or rejected Strait's opinion.

"This type of improper and flawed legal declaration from this same vexatious declarant, based only on incomplete, second-hand knowledge, has been ignored or squarely rejected by all previous courts," according to the brief. "Likewise, it should be ignored by this court."

Hotchkiss disagreed, stating Strait qualifies as an expert and has a right to offer an opinion.

"Although the court is not certain that it has ever received a declaration from Mr. Strait, this court is aware of some of his prior opinions. The court agrees with some and disagrees with others," he wrote. "The court will make the final decision, not Mr. Strait."

Where the case goes now is still unknown.

Ahrend said normally the case would be referred to the state Attorney General's Office, a different county prosecutor's office or a private attorney. He didn't believe the prosecutor's office would be allowed to refer it since they were removed from the case.

"I think practically speaking this is over," he said. "I welcome the appointment. I have a lot of confidence that we can convince (an appointed prosecutor) that this case is merit less and should be dismissed."

Ahrend pointed out Hotchkiss didn't rule on the merits of the case, but he expected if Hotchkiss really thought it was an emergency, he would have done something to prevent Jasman from signing death certificates.

Lee was not available for comment, but a memo from Snohomish County Prosecutor Mark Roe disagreed with Ahrend's sentiments. Lee requested Roe's opinion on whether Jasman should serve as a deputy coroner. Roe responded in a Nov. 16, 2011 memorandum.

"It is my understanding that part of Mr. Jasman's previous plea agreement and sentence was a requirement that he not act as coroner or deputy coroner. Clearly he is doing so. They may call him something else, but what he is actually doing seems to be an obvious violation of his conditions," Roe stated. "I believe allowing him to continue to thumb his nose at that sentence, in conjunction with the allegations of past wrongdoing, may well expose your county and the elected coroner to significant liability. The decision of your coroner to hire someone specifically, and by court order, precluded from doing exactly what Mr. Jasman is doing, simply mystifies me."

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