The question of prosecutorial misconduct in the first trial of accused double-murderer Michael J. Pierce lingers as incumbent Prosecuting Attorney Scott Rosekrans prepares for a challenge from Michael Haas, a Port Townsend defense attorney, in the Nov. 4 general election.
In 2010, a Jefferson County jury convicted Pierce of two counts of first-degree murder and other charges in the 2009 murders of Quilcene residents Pat and Janice Yarr.
He was serving a life sentence in prison when the state Court of Appeals overturned the conviction in 2012, citing prosecutorial misconduct by Rosekrans.
The court specifically cited Rosekrans’ closing arguments, in which he speculated on the thoughts of the victims and Pierce the night of the murders.
An investigation since performed by the Washington State Bar Association is at the heart of the continuing controversy, with Rosekrans saying the bar association cleared him of ethical violations.
During a debate last month sponsored by the Jefferson County Women’s League of Voters, Haas disagreed with Rosekrans, saying the bar association has no authority to clear an attorney of prosecutorial misconduct.
He harshly criticized Rosekrans’ closing arguments in the Pierce case, calling them “beyond the pale.”
Rosekrans said the question only arose when Haas decided to make it a campaign issue.
The bar association investigation was prompted by a grievance filed by Judge Ronald Kessler, who serves in King County Superior Court and presided over the 2010 Pierce trial.
Disciplinary Counsel Doug Bray, who investigated the grievance on behalf of the bar association, responded to Kessler, saying that “insufficient evidence exists to prove unethical conduct by Mr. Rosekrans by a clear preponderance of the evidence in the matter.”
In his report, Bray said that “in order to find ethical misconduct,” he would first have had to prove that Rosekrans’ argument was improper.
In the end, Bray dismissed the grievance, citing a later case, State v. Davis, in which the prosecutor “told a similarly emotionally charged story of dialog between the victim and the defendant.”
He noted that despite the similarities, the court declared the prosecutor’s comments in Davis weren’t “sufficiently prejudicial to warrant reversal.”
He concluded, “We believe the Davis opinion would control in any argument in a disciplinary proceeding over the impropriety of Mr. Rosekrans’ behavior.”
Haas said the bar association — and Rosekrans — misinterpreted the implications of the Davis decision.
He noted that the comments of the prosecutor in the Davis case were made during the sentencing phase of a death penalty case, while Rosekrans made his comments during the closing argument of a trial.
“It’s mixing apples and oranges,” Haas said.
He added that a bar association ethics investigation has no bearing on the determination of prosecutorial misconduct by the court.
Kessler said he files grievances with the bar association every time a case is overturned for prosecutorial misconduct.
He said he doesn’t recall the response from the bar association, which was sent to Rosekrans almost two years ago, but said it’s largely immaterial to him.
“My role is to report,” he said.
He added that claims the bar association could exonerate Rosekrans for prosecutorial misconduct are mistaken.
“The bar association has zero to do with the case,” Kessler said.
Rosekrans said describing the Davis and Pierce cases as “apples and oranges” is inaccurate. “Both cases had to do with arguments with a jury.”
He said because the prosecutor in the Davis case was arguing for the death penalty, the Supreme Court would have looked even more closely at the issue of prosecutorial misconduct.
Rosekrans characterized the arguments made by the prosecutor in the Davis case as “extremely strong language” but said the Supreme Court nevertheless decided “it’s just argument. Even with a death penalty, those arguments aren’t reversible error.
“The state bar said that in a disciplinary proceeding, Davis would control because, pure and simple, the argument was not reversible.”
Additional Questions
Joan Best, a Port Townsend attorney and a relative and supporter of Haas, has since written to Doug Ende, director of the bar association’s office of disciplinary counsel, to protest that Rosekrans “is using this letter in comments to our two local newspapers and in candidate forums to imply that the WSBA has overturned the finding of prosecutorial misconduct in the Pierce case.
“Lay people do not understand the relationship between the Appellate Courts and the Bar, and he has taken advantage of that lack of knowledge in his campaign response to the issue of his prosecutorial misconduct.”
She also called into question the conduct of the investigation, saying Bray didn’t wait for the Supreme Court to respond to the Pierce decision before issuing his own findings.
She pointed to the chronology of events, noting that the Pierce trial conviction was overturned July 17, 2012.
The Supreme Court released its decision in the Davis case Sept. 20, 2012, and Bray then released the bar association’s investigatory report on Rosekrans’ actions Nov. 19.
The Supreme Court didn’t decline to hear the appeal of the decision overturning the Pierce case until Dec. 4, 2012, well after the Davis case had been decided.
She noted that according to court rules, “at least five judges” had to review the Pierce appeal before declining to hear it.
Best said Bray “guessed” how the court would regard Rosekrans’ actions.
Rosekrans said the Supreme Court didn’t consider the appeal in the Pierce case because it was overturned on multiple grounds, including denying his constitutional rights following his arrest.
“They already had reversible errors,” Rosekrans said, adding that questions regarding prosecutorial misconduct “wouldn’t have had an impact.”
Since the original 2010 trial, Pierce has been tried two additional times, once in Jefferson County and once in Kitsap County, with both ending in mistrials.
The third retrial began Oct. 6 in Kitsap County Superior Court.
Debra Carnes, chief communications officer for the Washington State Bar Association, declined to comment on the bar association’s report, saying the results of the investigation are private.
“I can’t speak on a document that isn’t public,” she said.
Carnes explained that the Washington State Bar Association is the regulatory agency for the practice of law in the state, with authority provided by the Supreme Court.
Under the court’s rules, the bar association is exempt from many of the Open Records Act requirements that apply to other governmental entities in the state, including documents pertaining to the “application, investigation and hearing or proceeding records relating to lawyer, Limited Practice Officer, or Limited License Legal Technician admissions, licensing or discipline.”
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Reporter Mark St.J. Couhig can be reached at 360-452-2345, ext. 5074, or at mcouhig@peninsuladailynews.com.