Prosecutors statewide are scratching their heads after the Washington Court of Appeals overturned a local criminal case, muddying the waters for what type of police misconduct can be brought up during a defendant’s trial.
The court found last week that the Clark County Prosecuting Attorney’s Office in 2009 did not provide evidence the defense could have used to potentially discredit a testifying police officer — known in the courts as a Brady violation.
Lester Juan Griffin Jr. was convicted of first-degree burglary and first-degree assault in connection with a 2008 shooting in Vancouver’s Kevanna Park neighborhood. He is currently serving a nearly 24-year prison sentence.
However, the higher court’s opinion states that the prosecution’s failure to disclose prior misconduct by the lead investigating officer in Griffin’s case might have affected the outcome of the proceedings. As the decision stands, Griffin will receive a new trial.
The Clark County Courthouse is abuzz over the decision, particularly because the trial attorney in Griffin’s case was Tony Golik, before he was elected Clark County Prosecuting Attorney.
The court’s ruling, Golik says, has broader implications and will prompt prosecuting attorneys across the state to re-evaluate their Brady policies.
Conviction appealed
In Griffin’s case, two assailants wearing bandannas over their faces forced their way inside an apartment. When they encountered the tenant, Gary Atkinson, they reportedly fired two shots as he ran away from them — one of which hit Atkinson in the back. Atkinson was treated at a local hospital.
The police investigation found that Griffin and Christopher Perkins were the alleged assailants, and a third co-defendant, Gary Alexander, was supposed to be the getaway driver. Atkinson initially identified Alexander as one of the assailants at his door, according to court records.
In his post-appeal petition, Griffin argued his rights were violated under Brady v. Maryland — the 1963 U.S. Supreme Court decision that created the standard that prosecutors must disclose “exculpatory evidence,” or any evidence favorable to a defendant’s case. He contends that the prosecution should have disclosed evidence relating to internal affairs investigations of the lead investigating officer in his case.
The officer, Jeffrey Wilken with the Vancouver Police Department, was placed on administrative leave for allegations that he sexually harassed and assaulted a female community corrections officer. Wilken is no longer with the department; he resigned in September 2009, according to the agency.
Griffin’s defense attorney, Bob Vukanovich, learned of Wilken’s temporary leave shortly before trial and brought it to the court’s attention. He asked for the facts related to Wilken’s leave to determine if they spoke to his truthfulness, as he was set to testify against Griffin.
Golik, then a deputy prosecutor in the major crimes unit, said he did not know how the defense found out about Wilken’s administrative leave but that he had looked into it to determine if there was any Brady material, according to the opinion. He said he was specifically advised by Denny Hunter, then the chief criminal deputy prosecutor, that there were no Brady issues. Hunter directed Golik not to tell the defense that Wilken was on leave, the opinion said. Hunter could not be reached for comment.
Golik asked Judge Robert Lewis for time to further consult with Hunter.
After the trial was underway, Hunter brought Wilken’s officer file to the court for Lewis to review in his chambers. Lewis ruled that the file did not contain information that needed to be disclosed to the defense.
Wilken’s inappropriate conduct reportedly included placing a pair of women’s underwear on the corrections officer’s head during the execution of a search warrant, handcuffing her to a chair and wheeling her into a men’s locker room and making sexual remarks toward her, the opinion shows.
Earlier investigations
To Golik’s and Vukanovich’s knowledge, the judge saw only the file pertaining to the sexual harassment and assault allegations against Wilken.
Both said that it wasn’t until the appeals process and court’s opinion that they learned Wilken had two other internal affairs investigations that should have been disclosed.
The Innocence Project Northwest, which handled Griffin’s petition, discovered the formal complaints against Wilken after filing public records requests.
“We are very pleased with the decision and extremely happy Mr. Griffin was granted relief. The court’s opinion is an important recognition of the impact on fairness when information is kept from the defense and jury,” said Kate Huber, staff attorney with IPNW and counsel on Griffin’s appeal.
In one complaint, filed in 2000, the prosecuting attorney’s office notified the Vancouver Police Department that “Wilken provided testimony in court that was in conflict with a search warrant affidavit he authored, as well as an Order for Destruction of Hazardous Substances,” according to the court opinion.
The department ultimately found Wilken did not provide false statements, but he did violate the agency’s policies for neglect of duty and incompetence, the court opinion said.
Then, in 2002, the department investigated Wilken for apprehending a suspect without authorization, and while off-duty with his minor children present, according to the court opinion.
Wilken had received a tip on a suspect’s whereabouts and went to that place in his personal vehicle. He arrested the suspect and placed her in the back of a patrol car that arrived. Once she was in the patrol car, he removed the suspect’s handcuffs and left the back windows down. The suspect escaped, resulting in a foot chase, the opinion said.
The agency found Wilken again violated its policy of neglect of duty, as well as its policies for duty to report information, unauthorized investigations, chain of command and prisoner security, the opinion said.
In a letter of reprimand to Wilken, the chief of police noted that Wilken had “a sufficient history of internal affairs investigations … three of which resulted in sustained policy violations,” and he had already received counseling and retraining for previous performance errors, the opinion reads.
Possible precedent
In an interview Friday, Golik said he is not privy to what the administration in his office, then under Prosecutor Art Curtis, knew about Wilken’s investigations or what it did with that information.
“I can’t speak to the decisions made by this office at the time,” he said, adding that the court did not find that any evidence was intentionally withheld.
No written Brady policy existed in the prosecutor’s office prior to 2010, Golik said. Hunter was among those who crafted the current policy, but it was not until Golik took office that a policy was officially adopted.
It does not appear Wilken was ever on the Brady List, and he will not be added now that he has left the Vancouver Police Department, Golik said.
Since taking office in January 2011, Golik said, he has ensured that all deputy prosecutors are trained in the office’s Brady policies and know what is required of them.
“It’s strange that I’ve worked so hard on this policy, and then it comes down and it’s me,” he said. “I don’t want any deputy prosecutors to unwittingly make a Brady violation.”
Golik is not worried about sanctions from the Washington State Bar Association, he said, but is concerned about what the higher court’s ruling means.
His office can ask the Court of Appeals to review its decision or appeal to the state Supreme Court. Those decisions will be made in consultation with other prosecuting attorneys’ offices, he said.
In addition to the Brady violations, the court also found Vukanovich provided ineffective counsel, because he failed to object when Golik had one of Griffin’s co-defendants testify against him as part of a plea deal.
Vukanovich said it was a strategic move that allowed him to bring up certain points on cross-examination.
“I’ve never had this situation in 26 years of practicing law,” he said. “Whether I was (ineffective counsel) is up to interpretation.”
He said he, too, is not worried about the WSBA bringing sanctions against him.
Policing the police
Clark County’s current policy states that if an officer is deemed dishonest through the internal affairs process or if the investigation appears to have merit, that agency must alert the prosecuting attorney. That officer is then added to a Brady List and their file is shared with the defense. The defense can use the information to bring the officer’s future testimony into question. Other allegations of dishonesty discovered by the prosecuting attorney’s office go before a Brady committee to determine if that officer should go on the list.
Historically, law enforcement officers who are placed on a Brady List have sustained findings of dishonesty, not other policy violations. But the higher court’s decision appears to be based on the cumulative misconduct of the lead investigating officer in Griffin’s case, and not dishonesty.
“This case breaks new ground,” Golik said. “This case seems to expand what we need to tell law enforcement that we need.”
Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, says there are two issues at play: First, potentially a greater need to document issues unrelated to an officer’s honesty; second, and of more concern, documenting officers who have been cleared in a particular investigation.
“Do we need to start preserving everything? Because we are going to have officers who are very upset about us documenting problems that have been cleared,” McBride said.
