County Prosecutor Tunheim Interview on the Issues

Above: Thurston County Courthouse sign directs visitors. A 2017 independent report says Thurston County Prosecuting Attorney Office practices contribute to slow case management. In an interview, Prosecuting Attorney Jon Tunheim touts new case management protocols and programs.

By Janine Gates

Little Hollywood

https://janineslittlehollywood.blogspot.com

In his bid for a third term as Thurston County Prosecuting Attorney, Jon Tunheim is, for the first time, facing a challenger. 

In a recent interview with Tunheim, Little Hollywood focused on themes mentioned at his May 14 campaign kickoff party. It also took a deep dive into a 74 page independent report published in 2017 about Thurston County Superior Court felony case flow and calendar management.

Prosecutors in Washington State process all criminal cases, including those filed in Superior Court.

The report is particularly harsh in its findings about the Thurston County Prosecuting Attorney Office, saying the office does not have many policies in place that are standard best practices for trial courts.

Tunheim responded to the report and revealed new case management protocols currently underway.

National Center for State Courts (NCSC) Report

The report, published in June 2017 by the National Center for State Courts (NCSC), is titled “NCSC Felony Caseflow and Calendaring Study of Thurston County Superior Court.”

The consultants studied data and a sampling of cases within the prosecuting attorney’s office (TCPO), the public defender’s office (TCPD), and the court system, identifying a host of procedural and performance issues that causes delays, system inefficiencies, and productivity problems.

“Importantly, most everyone in the criminal justice system interviewed by the NCSC project team is dissatisfied with its functioning. To create the changes this report is recommending, every participant in the system, including the TCPO and the TCPD, must be willing to modify and reengineer their operations to improve overall system productivity for the public and for themselves,” it says.

The report is available online at http://www.co.thurston.wa.us/superior/documents/ncsc-report-20170601.pdf 

The NCSC consultants contend that lack of supervision of deputy prosecutors and ineffective pretrial conferences contribute to poor-quality decisions regarding which cases to take to trial. It also says there are too many trials. 

For those cases that do go to trial, approximately 50 percent end in not guilty findings or guilty findings to lesser charges.

Of 388 scheduled pretrial events, only 138 (35 percent) occurred on the date and time scheduled. The report says that this is a tremendously high percentage given the number of events that take place.

In blunt language, the report says that in-custody defendants’ length of stay at the jail is longer than it needs to be, the jail population is higher than it needs to be, and the current practices of the prosecuting attorney are a substantial cause of continuances, thus contributing to a slow case management system. 

Of the cases analyzed by NSCS investigators, the time from charging to disposition ranged from 28 days in a burglary case to 681 days in a drug sale case. Sex offense and drug sale/purchase cases took the longest to reach finality.

Pertaining to the handing over of case evidence, the discovery delivery process, the report illustrates communication difficulties between the prosecutor’s office and public defender’s office.

The report recommended that the prosecutor’s office overhaul its discovery delivery system to include a checklist so defense attorneys can see what is being delivered and is not yet delivered. This list should be entirely electronic, saying other counties have systems that could be copied.

“The Prosecutor believes in case management autonomy for his deputies. Although this may sound good in theory, in practice autonomy leads to large-scale plea agreement inconsistencies across his deputies. This is an issue of justice and fairness,” says the report.

To improve overall efficiencies, the report lists several major recommendations for the prosecutor’s office.

Above: Thurston County Prosecutor Jon Tunheim 

Photo by Janine Gates/Little Hollywood Media

Tunheim Responds To Report

In our interview, Tunheim was asked to respond to the report, which, to a layperson, appears particularly scathing toward the prosecutor’s office.

The report’s findings are important because the county’s criminal justice system eats up 76 percent of Thurston County’s general fund and the county commissioners are currently considering an expansion of the relatively new county jail. 

Tunheim said that “if there’s anything good that came out it [the report], everyone got their finger pointing done,” while pointing out the flaws in case flow and timeliness.

“There’s been a cultural issue with our Superior Court for a while now – nobody is holding anybody else accountable. It’s a delicate issue. Prosecutors and defenders work together in a relationship…of give and take on both sides…we try hard in this county to not be inappropriately adversarial. We try not to make it personal and try to understand each other’s hurdles.”

As a result of this relationship, Tunheim said there are continuances.

“Judges let lawyers make those decisions and were criticized in the report for not holding our feet to the fire,” he said.

Tunheim said he disagrees with the report’s comments on prosecution policy as there was no prosecutor involved in its writing.

“There were two consultants, a court administrator and a judge, both from large court systems. They are good system thinkers… (but)  I don’t feel like they understood that very well from a prosecutor’s perspective. Some things in there I just flat disagreed with on a philosophical policy level. All the system stuff about how we can move cases through – most of that I agree with.

“…There were admittedly things causing cases to be delayed. The discovery issues were less about discovery and more about when they get offers and are part of the negotiation process. We have been having a hard time getting discovery from the law enforcement agencies and that is putting some delay in our process because we can’t turn it over until we have it – and it takes time to do that,” said Tunheim.

New System Improvements

Tunheim says processes have improved since the report came out. New case management protocols which determine how a case moves through the system officially went live on June 1.

One of the recommendations in the report was for the process of discovery to be handled electronically.

“We all came to the table and came to specific agreements….The public defender’s office and the prosecutor’s office have been working together for the last six months to put a request for proposals out to get a new case management system that will hopefully be another improvement for all of us so we can exchange our discovery electronically, better schedule things and be all on the same page and use the system to better watch cases as they are moving through on the timeline.”

Felony Leadership Improvement Project (FLIP)

Tunheim described a new felony leadership improvement project (FLIP) that involves the leadership of the prosecutor’s office, public defender’s office, the court clerk, the court, jail, and pre-trial services to design a new case flow management system.

Meeting one and a half hours every month since last year, with a subcommittee meeting more frequently, part of their work is to set a realistic schedule for trial dates and design tracks for cases. The process is called differential case management - a good assessment at the very front of what a case might look like and how it might be resolved within a realistic timeframe.

Tunheim says a Thurston County murder case will take six months to a year to get to trial. A drug possession charge will take sixty to ninety days.

Addressing criticism in the report, Tunheim said he has felt unheard for a long time regarding the creation of a management system. 

In 2010, when another report was done about the court system, Tunheim said he advocated for a differential case management, but the court responded, “We don’t have the computer system to be able to do that.” Tunheim agreed it was a dinosaur of a system.

More case management fits and starts occurred as he worked with the previous county commissioner appointed public defender, Daryl Rodrigues, and it could never get rolled out.

“Finally, when the report came out, everyone was ok, let’s do this,” Tunheim says. He says the report unfairly implies that it’s the prosecutor’s office responsibility to develop a differential case management system.

“We can’t do that – it’s a system – so that’s why FLIP was so important – everyone finally came to the table and we were able to participate.”

First Look Unit

Tunheim’s new “First Look” unit is an idea that came out of the FLIP process. Its goal is to do a front end assessment of cases, contact the public defender’s office, and see which cases could be resolved quickly.

These cases often involve a significant addiction issue or are in need of some other kind of diversion. The unit’s purpose is to take a chunk of cases out of the system, so that the ones that are left get the prosecutor’s time and attention.

“Theft may be the case, but what (may be) driving it is the addiction…or maybe it comes in and nobody is arguing about what needs to happen, it just needs a plea offer to be made to see if we can resolve the case.”

Since January, about 150 cases have gone through the First Look process. It started with one deputy prosecuting attorney and Tunheim has since added two more, taking them away from other caseloads.

Tunheim credits one of his deputy prosecutors with coining the “First Look” phrase.

“I like it…it’s different. It proactively seeks out cases that could benefit from earlier resolution….I want to give it a very specific role and authority in the office…not make it just a process or a phone call.”

Law Enforcement Assisted Diversion (LEAD) Program

Tunheim was asked about the law enforcement assisted diversion (LEAD) program, a law enforcement led alternative to jail or other criminal justice response.

Tunheim took issue with points his challenger, Victor Minjares, made about it in an interview with Little Hollywood. Minjares had declared the county program a failure.

“I’m not ready to do that,” Tunheim said, saying it is a still a pilot project, begun last fall with the Lacey Police Department and the county sheriff’s department.

“It’s all set up, but we’re not getting the referrals from law enforcement. We’re still troubleshooting that…We’re in a way different environment than Seattle where it was created….We thought we could take this and do it on a county scale and that’s where we are running into our challenges. At the county, a deputy has someone in custody, and it’s easier for them to just take someone to jail and let the system work it out….Our feeling is that law enforcement doesn’t think it meets their needs right now.

“This may evolve, but if law enforcement would rather just take them to jail, our First Look program will take a look at the case and put it into community diversion.  Instead of charging them, release them from custody, and have mobile outreach meet them at the jail as they are being released to help them set up their plan. That’s our next step. I’m hopeful that will become our solution….We can make that happen. 

“That’s why I was concerned about the slow process. When FLIP is fully activated, that will reduce caseloads, and that burden will come down a little bit,” he said.

Speaking of caseloads, Little Hollywood asked about the morale of his team. 

In an office of 32 deputy prosecutors, 13 lawyers are assigned to felony cases. Last year, each deputy prosecutor had about 120 open felony cases at any one time.

The question led Tunheim into an animated conversation about the theory of hope.

Saying his style of leadership is driven by the concept of hope – the belief that the future can be better than the present and one’s ability to make it so, Tunheim says he has a good team that works well together. The office has experienced a very low turnover of lawyers over the past seven and a half years.

“We are creating a forward thinking culture for the community,” he said.

Editor’s Note/Clarification, June 4: In reference to the morale of Mr. Tunheim’s team and the number of open felony cases last year, Mr. Tunheim says each deputy prosecutor had 120 open felony cases, not a total caseload of 120 for the team. The reference has been corrected.

For more information about the campaign for Thurston County Prosecutor, go to “County Prosecutor Tunheim Defends Career, Successes,” at https://janineslittlehollywood.blogspot.com/2018/06/county-prosecutor-tunheim-defends.html and “Minjares Makes Case for Prosecuting Attorney Race,” at https://janineslittlehollywood.blogspot.com/2018/05/minjares-makes-case-for-prosecuting.html

Minjares Makes Case for Prosecuting Attorney Race

Above: Local attorney Victor Minjares is running for Thurston County Prosecuting Attorney on the issues of reform, respect, and justice.

Change Needed in Local Law and Justice Department Culture, says Minjares

By Janine Gates

Little Hollywood

https://janineslittlehollywood.blogspot.com

“There are serious issues with the criminal justice system in Thurston County,” local attorney Victor Minjares said in a recent interview with Little Hollywood.

While some know the criminal justice system only through television shows like Perry Mason or Law and Order, others know it all too well in real life.

Reflective of the national examination on implicit bias, socio-economic and racial injustice and other systemic issues beleaguering the law and justice community, Minjares is running for Thurston County prosecuting attorney on a campaign of reform.

Minjares says he wants to change the culture within the office that hasn't seen a change in decades.

The position of prosecuting attorney and the issues associated with it may not be on voters’ radar because current prosecuting attorney Jon Tunheim, who is running for his third term, has never had a challenger. Each term is four years.

Before Tunheim, Ed Holm had been prosecutor for three terms, from 1999 to 2010. After Holm was sued by three female deputy prosecutors in his office for sexual harassment and won their case, he chose not to run for reelection. 

Tunheim, who was chief criminal deputy prosecutor at the time, ran for the position and won, and won reelection in 2014.

According to his biography, Tunheim first joined the Thurston County Prosecuting Attorney’s Office as a legal intern in 1988 and has won many awards for his community service.

Minjares and Tunheim are running as Democrats. The position pays an annual salary of $169,187. Fifty percent of the salary is paid by the county and fifty percent is paid by the State of Washington. 

Making His Case

Minjares has 30 years of experience handling criminal, civil, appellate, and administrative cases in state and federal courts. He moved to Olympia in 2006 from Los Angeles, California and is a graduate of Pomona College and Stanford Law School. 

A civil attorney in private practice, he now represents nonprofit organizations, individuals, and small businesses in Washington and California courts.

From 2008 – 2014, Minjares served Thurston County District Court as a Judge Pro Tem, presiding over misdemeanors, civil cases brought by pro se litigants, infractions, restraint petitions, and criminal calendars.

During much of that same time, Minjares was an assistant attorney general in the Torts Division of the Washington State Attorney General's Office, responsible for defending state agencies in civil damage lawsuits in federal and state court.

His resume is long and his experience is deep and varied. Early in his career in Los Angeles, Minjares was a criminal prosecutor for 15 years, sending criminals to prison for murders, robberies, home invasions, and other serious felonies.

He lives in Thurston County with his wife and children. He is active in the community and has served on several boards. 

The Role of the Prosecuting Attorney’s Office

Little Hollywood asked Minjares about the responsibilities of the office, the issues he sees, court diversion programs and alternatives to incarceration, the case of Andre Thompson and Bryson Chaplin, the two young African American men who were shot by a white Olympia police officer in 2015, and a recent independent study of the county’s court system.

“There’s a lot of things wrong with the prosecutor attorney office – a lot of waste, a lack of supervision, a lack of respect for the office itself and the power it holds. I want to bring in reform, bring back respect, both for the office and for the public, for the courts.

“I want to bring a general sense of justice to the job, justice above all else, even if that means walking in and dismissing because you got it wrong, fixing a case because you accidently convicted the wrong person, or charging someone who is very popular because they did a serious crime….”

Asked for specifics, Minjares said he wants to create a conviction integrity unit with outside experts to review evidence and sentences and determine whether or not errors were made. 

“When I talk to criminal defense attorneys and individuals, they tell me stories of their interactions and that it is not the policy to immediately turn over evidence showing when someone is innocent. They make defense attorneys fight for it and in fact, there’s a lot of litigation about that in our courts. The obligation of a prosecutor is not to withhold information. If he finds that a witness has changed their story, or finds a new witness that shows that the defendant is innocent, the obligation is to contact the other side and say, ‘Hey, you might want to talk to this witness.’”

“Here (in Thurston County), they let them know right before the trial, which causes a continuance of a case, and that is a violation of speedy trial rights of the defendant,” he said.

“If I’m prosecutor, the evidence will get turned over right away. Then we can argue in court whether it is relevant or admissible – the defense is going to get the information at the earliest opportunity.

“One, it’s the right thing to do. Two, it’s more efficient. You know what the case is worth early on and decide how to plead…or decide whether it needs to go to trial….To wait until the last minute is unethical and inefficient.”

Minjares said that when people sit around waiting for their case to come up, they may lose their job and increase the strain on the social service system.

Minjares says it costs $42,000 a year to house someone in the county jail and even more in the state system. 

“Some people need to go to prison...but when you do that…when you send someone away to prison or jail, you’re increasing the costs on the county through a myriad of factors that don’t show up on the balance sheet…but they are there and they are real,” he said.

“Did you know most of the people who are sitting in Thurston County jail right are not guilty of any crime? They are awaiting trial. I’d like to examine better methods of releasing people on their own recognizance, or setting a low bail when it's warranted, for relatively minor offenses...like low-level misdemeanors or drug offenses. People should not be sitting in jail simply because they cannot afford $1,000 to make a $10,000 bond, for example.”

Thurston County Statistics

The Prosecuting Attorney’s Office has a civil division and a criminal division.

The civil division of the prosecuting attorney's office serves as the attorney for Thurston County, providing legal advice and representation to the county elected officials, departments, and independent boards and commissions.

The criminal division receives referrals from law enforcement agencies to review for possible criminal charges.

According to the Prosecuting Attorney’s website, the office leads a team of 32 lawyers and 37 support staff.

In 2016, 1,606 felony cases were filed (325 were felony domestic violence cases and 145 felony sexual assault and/or child abuse cases), 2,017 misdemeanor cases (445 were misdemeanor domestic violence cases), 502 juvenile cases, 167 defendants received services in the drug court program, 16 defendants in DUI court, 48 defendants enrolled in mental health court and 22 defendants in veteran court.

The office also processes over 1,800 child support cases each year while also serving as a law firm for all Thurston County Government offices.

Minjares was asked to comment on those numbers and whether they are reflective of a community the size and demographics of Thurston County. He says the statistics don’t tell the whole story.

“Of those 32 attorneys, around six are civil attorneys, the rest criminal. Thirty two lawyers is not a large office… (but) there’s no supervision by the prosecutor. It should be part of the job. The prosecutor goes to meetings and has no idea of what’s going on in his own office. It’s really a free for all. Our crime rate is steady in the county but the sentences are going up. The maximum sentence is not the solution to all problems, which it seems to be in that office.”

Minjares was asked why the jail is overflowing if crime is steady and why the sentences are going up.

“Well, if I’m an individual prosecutor left to my own devices, to me, to be successful is to get a maximum sentence for the charge. However, you can’t let prosecutors seek that in every case. You have to supervise them so you don’t overflow the jails, bankrupt the county and bankrupt the state.”

“I want to open up the black box that is the Prosecuting Attorney’s office. They do not really give statistics that don’t make them look like they’re doing a good job. I want to use our sunshine policies in this state and apply them to the prosecutor’s office so the public can see for themselves what is happening. Raw numbers like this that they are putting out don’t tell you if they are being fairly prosecuted, or if prosecutors are sanctioned for breaking the rules,” he said.

System, Jail Alternatives

Seventy five percent of the county’s budget goes to law and justice and that includes the courts, the jail system, the sheriff’s office, public counsel, and probation services.

Thurston County has several court diversion programs, including a drug court, a mental health court, and a veteran court.

“It’s expensive to run a courtroom - about $9,000 a day. I’m in favor of (these diversion) courts and what they are trying to accomplish, but they are expensive. We need to rely more on diversion before they enter the criminal justice system.”

Minjares described a successful law enforcement assisted diversion (LEAD) program that began in Seattle.

“It’s intended to keep low level offenders out of the system before they are booked and enter the whole hamster wheel of the system. It’s a pre-booking diversion program. They tried to start the program here in Thurston County but after six to eight months, they have had just one person enter the program. It’s up to the prosecutor’s office to agree that it’s used or not. Look at what it’s costing our system to not use that program. The prosecutor’s office has failed on that one,” he said.

Studies of Thurston County Courts

Minjares was asked about the Thurston County District Court report conducted last year by staff of the Center for Court Innovation and the National Council of Juvenile and Family Court Judges (NCJFCJ).

To assess the court’s strengths and weaknesses regarding access to justice, NCJFCJ staff conducted a three day tour of the Thurston County Courthouse and anonymously observed the court process and procedures.

In the report, several recommendations for improvement were made. The report is available at http://www.co.thurston.wa.us/distcrt/docs/TCDC_Report.pdf

Minjares also referred to The National Center for State Courts (NCIC) report about Thurston County Superior Court. A link to that report, “NCSC Felony Caseflow and Calendaring Study of Thurston County Superior Court” is at: http://www.co.thurston.wa.us/superior/documents/ncsc-report-20170601.pdf

Minjares said the report’s findings were enlightening and overdue.

Above: Center for Court Innovation and NCJFCJ staff observed the courthouse complex signage. They reported that the signage was unclear and difficult to follow, “which made it even more frustrating to navigate an already confusing courthouse layout,” did not make clear what kinds of cases were heard in those courtrooms, and did not use multiple languages. “This is even more problematic since there is another court campus in another part of the county that hears family and juvenile matters which may further confuse litigants,” says the report.

Andre Thompson and Bryson Chaplin Case

Little Hollywood asked Minjares about specific cases such as the one in which charges were brought against Andre Thompson and Bryson Chaplin, two young African American men who were shot by a white Olympia police officer in 2015. 

“I can’t comment on the specifics of the case unless I have all the evidence in front of me, which I don’t, however, I will say I was rather surprised at the charging decisions made after that shooting. I would like to know a lot more about that to know what justified that level of, what seems like, retribution against those two individuals.

“I am not someone who believes that people who commit crimes should be let off but then again, there is justice involved in how to weigh certain factors in any situation,” he said.

“That investigation by the prosecutor took a long time and where are the recommendations regarding possible police policy changes that might lessen the chances of a similar confrontation in the future?” he asked.

“….The prosecuting attorney is supposed to be for the people of Thurston County. Part of the job of the prosecuting attorney’s office is to make sure the system works better. Dodging that responsibility has been a very pervasive failure….”

True reform methods are often below the radar for a lot of people who are not intimately involved in the issue, and while the need for a new courthouse is a given, it isn’t going to solve a problem with the culture, he says.

Little Hollywood asked Minjares if he has a real life role model for prosecuting attorney and law and justice reform.

Minjares mentioned his former Stanford classmate, Larry Krasner, who is now district attorney of Philadelphia.

“He ran on a campaign of reform and while I’d tailor it to Thurston County, he and others seeking to bring real justice to the prosecuting and district attorney offices across the country is really something to watch,” he said.

Above: Victor Minjares greets attendees at his campaign kick-off party on Wednesday.

About 60 enthusiastic people attended his campaign kick-off party at the historic Jacob Smith House in Lacey on Wednesday night.

Olympia city councilmembers Renata Rollins and Lisa Parshley spoke in support of his candidacy, as did Keoki Kauanoe, chair of the Washington State Progressive Caucus, and Steffani Powell, a local immigration attorney.

Powell described the qualities of a good prosecutor and the growing power of the prosecutor position across the country. 

Most prosecuting attorneys in the United States are Caucasian.

“….Their power is immense. They get to decide who to charge and the type and number of charges leveled against an individual….Many prosecutors run unopposed across the country and have strong party ties....When there is unchecked power, problems often follow. Prosecutors are the most powerful officials in the American criminal justice system,” said Powell.

Editor’s Note, May 6: Little Hollywood made a few clean-up edits to the original story, such as correcting the spelling of local immigration attorney Steffani Powell’s name and clarifying that the LEAD program is a pre-booking diversion program, not a “pre-diversion program.”

In the interview, Minjares also referred to The National Center for State Courts (NCIC) report about Thurston County Superior Court. That paragraph was dropped off in editing. 

For more links and information about Thurston County Prosecutor Jon Tunheim, his findings about the police officer involved shooting of Andre Thompson and Bryson Chaplin in 2015, the community response, and Olympia police and community relations, go to Little Hollywood at www.janineslittlehollywood.blogspot.com and type keywords into the search button.