Prosecutor's Office May Face Conflict of Interest in Tommy Le Case

by Carolyn Bick

The only thing that appears to be standing in the way of the Washington State Office of the Attorney General or the United States Department of Justice bringing criminal charges against the King County Sheriff's Office for its handling of the 2017 shooting death of Tommy Le is a phone call from either King County Prosecutor Dan Satterberg or Gov. Jay Inslee.

But it is a phone call that, as of this writing, will likely not be placed any time soon.

While the Le family attorneys also object to Inslee's silence on the matter, this story will examine their contention that there exists a major problem within the King County Prosecutor's Office (KCPO) — specifically, that the KCPO faces a conflict of interest in its decision to reserve the right to bring criminal charges against the deputy who shot Le — criminal charges that could negatively impact King County, the very client KCPO is defending in the ongoing federal civil rights suit regarding Le's death.

In June 2017, King County Sheriff's Office (KCSO) Deputy Cesar Molina shot and killed 20-year-old Vietnamese American student Tommy Le. Le's death became a high-profile incident, not only for the later revelations that Le did not have a knife — as the KCSO originally falsely claimed; it was later claimed that he instead had a pen — but because it appears that he had been running away from responding deputies when Molina shot Le in the back, not the torso (the front of the body) as originally claimed.

The Emerald has been taking a deeper dive into the shooting death of Tommy Le, first releasing a story containing previously unreported evidence that showed, among other things, that Molina may have shot Le while the young man was facedown on the ground or at least falling to it; that Le may not have even had a pen in his hand; that detectives destroyed evidence on-scene; and the apparently strong likelihood that someone may have tampered with key bullet evidence that would seem to otherwise conclusively prove Molina shot Le while the young man was lying on the ground.

In the second story, the Emerald wrote about the recently released findings of a highly publicized, independent investigation into the KCSO's handling of its own internal investigation into the shooting of Le. Ordered by the King County Office of Law Enforcement Oversight (OLEO) and performed by OIR Group, the independent investigation revealed several disturbing findings, including the possibility that the involved deputies were legally coached behind closed doors and that the mechanisms by which this could have been carried out still, by and large, remain in effect.

At this time, the only charges the Le family and their lawyers' can legally press against Molina and King County in federal court are civil rights charges — specifically, that Molina violated Le's constitutional rights by shooting him.

By law, the only agencies that may bring criminal charges against a person or entity are prosecutorial ones. In Washington State, this means county prosecutors, the United States Department of Justice (DOJ), or the state attorney general's office. But for the latter to bring charges, it must first receive a referral from a county prosecutor or the state's governor.

In this case, those two people are King County Prosecutor Dan Satterberg and Gov. Jay Inslee, respectively.

But neither Satterberg nor Inslee has made that referral, despite the mounting evidence — including the aforementioned independent investigation into Le's death — that Le family lawyer Jeff Campiche, of Campiche Arnold, PLLC, says points to a cold-blooded cover-up in the KCSO.

In an Oct. 15 email, Satterberg told the Emerald that "[o]ur office reserves the right to file charges when there is a sufficient quantum of evidence to prove a criminal offense beyond a reasonable doubt," after the Emerald asked why he hadn't referred the case to state Attorney General Bob Ferguson's office for potential criminal prosecution.

"We are awaiting the results of the inquests in this case to make the final evaluation and decision," Satterberg said.

Inquests are supposed to be fact-finding tools into the manner and circumstances of a death. They involve a six-person jury, but the jury does not decide civil or criminal liability. However, because of the way they used to be structured in King County, they appear to have historically favored police: of recorded King County inquests, the last time a police officer was criminally charged after the inquest process appears to have been in 1971. Nothing turned up in an inquest is binding or admissible in court, and the Le inquest has not only not even begun but is on indefinite hold, following changes to the process and subsequent legal challenges.

When the Emerald asked about the fact that nothing turned up in an inquest is binding or admissible in court, Satterberg said in a follow-up email on Nov. 23 that "statements made under oath [in an inquest] could be admissible in a criminal case. That would be determined by a judge."

"But regardless of that, the facts found at an inquest can inform a charging decision on criminal liability. We expect that additional information from Dr. Wilson Hayes' report will come to light in the inquest process," Satterberg said in the email, referring to information the Emerald also reported on in the first story in this series. "There is also a likelihood that that evidence presented in the civil case will also be presented at the inquest. We will have the ability to make a more informed decision after the inquest has concluded."

Satterberg appears to be saying that he won't even consider filing criminal charges — much less referring out the case — until after the civil trial has finished, as he says that the facts produced in the civil trial will be used in the inquest to determine criminal liability, and the civil trial is not scheduled to begin until April 19, 2021, nearly four years after Molina shot and killed Le. But even if Satterberg did consider filing criminal charges or referring the case to the attorney general's office, it is unlikely that he would, given how soon the trial is scheduled to begin. It should be noted that Satterberg has had several years to file criminal charges.

However, as Campiche pointed out, it is unclear what else could come to light, given that the entire substance of Hayes' report and his professional opinions on certain other evidence are in the public file, which is available on PACER, the public court records system. Moreover, the recent OIR Group report commissioned by OLEO turned up other previously unreported findings and raised several red flags with regard to how the KCSO handled the internal investigation into the circumstances surrounding Le's death. As previously noted, the Emerald has published stories examining both of these reports in-depth.

In his Nov. 23 email, Satterberg acknowledged that the OIR Group report "concludes that there were several deficiencies with the King County Sheriff's Office policies and procedures, as well as calling into question certain portions of the investigation." But he said that because it "does not provide any additional evidence regarding the ultimate issue for the prosecutor's office: answering the question of whether Tommy's death was the result of a criminal act by police," he can't consider it helpful to prove "malice."

It should be noted that OLEO commissioned the OIR Group report specifically as an independent investigation into the KCSO's handling of the internal investigation into the shooting, due to the practices that came to light within that investigation over the course of the past several years. As the Emerald has previously written, the OIR Group report itself was damning and revealed more than just "deficiencies" in the KCSO's investigation. The report's findings even prompted one King County Councilmember, Girmay Zahilay — a trained lawyer who heads the King County Council's Law and Justice Committee — to term the KCSO's actions in the internal investigation of Le's shooting "a clear obstruction of justice."

Though the original trial date was supposed to be in June 2019, eleventh-hour appeals by Molina, asking an appeals court to grant him qualified immunity, and King County, asking for a dismissal of a specific claim against them in this case, have stalled the trial until this coming spring. In filing for qualified immunity, Molina was asking that the court legally recognize that he was acting appropriately and within the scope of his duties when he shot Le in the back.

In late May 2019, U.S. District Court Judge Thomas Zilly had denied Molina's motion for a summary judgement — a ruling without full trial — of qualified immunity. Zilly ruled that he himself could not make that decision, due to what he called "factual questions relating to the shooting of Tommy Le" that would need to be addressed by a jury in a trial. Molina appealed that decision to the Ninth Circuit District Court just a few days later, on the cusp of June 2019, when the original trial was set to begin.

In a motion for sanctions — a penalty — against Molina for the late appeal, the Le family's lawyers had asked that Zilly rule Molina's appeal to be "frivolous" — which, in legal terms, means that the claim was made in bad faith and was meant to "harass, delay or embarrass the opposition." However, Zilly denied the motion, provided that Molina's appeal did not require a "resolution of factual disputes."

At the same time as Molina filed his appeal, King County appealed Zilly's decision to deny a summary judgement to dismiss the Le family's Monell claim against the county. A Monell claim is a claim against the entity that employs a person who has allegedly committed civil rights violations and it asserts that a "municipality may be held liable for constitutional torts resulting from the decisions of its legislative body or those supervisory officials whose acts are said to be those of the municipality." This claim legally ties King County to Molina and his actions, because the claim is specifically based on an employee depriving a plaintiff of their constitutional rights, which is at the heart of the Le family's suit.

King County's and Molina's appeals were consolidated and sent to the Ninth Circuit Court of Appeals. The appeals process delayed the trial for nearly two years.

In June 2020, a little more than a year after King County's and Molina's appeals, the Ninth Circuit Court of Appeals struck down both appeals, saying in its official decision that it may only consider "purely legal issues" and "must construe the facts in the light most favorable to the plaintiff [the Le family]."

The Ninth Circuit Court of Appeals also imposed sanctions — in this case, a monetary fine for an amount that has yet to be determined — on Molina and King County for the nature of their appeals. The court agreed with Zilly, ruling that it lacked the jurisdiction to make the ruling as to whether Molina gets qualified immunity and that this decision should be left up to a jury.

The ruling is crucial, Campiche said, because it makes it clear that the Ninth Circuit Court of Appeals believes a jury should determine whether Molina acted with malice or "evil intent" — in this case, the desire to harm Le with the knowledge that shooting Le in the back was wrong. If Molina hadn't acted with malice, he would have been acting with probable cause — the "probable cause" being that Le did, in fact, pose a threat and should have been shot in the back. If he were acting with probable cause, Campiche said, Molina would likely have been able to gain qualified immunity, the legal recognition that he was acting within the scope of his duties. And because of the Monell claim, King County may also be held liable.

The shooting happened before the 2018 passage of Initiative 940, which, among other things, removed the malice standard. Therefore, in order to win in a criminal case against Molina, a prosecutor would be required to prove beyond a reasonable doubt — convincing a 12-person criminal jury to unanimously agree — that the deputy had acted with malice.

In an email to the Emerald, Satterberg appears to say he still does not believe that he would be able to prove this malice requirement in a criminal case against Molina, despite two separate courts' denial of qualified immunity for Molina. This is the same requirement that Campiche says a criminal jury could eventually decide, by way of deciding whether to grant Molina qualified immunity.

The case went to the KCPO soon after Le's death, before the OIR Group report or another report called the Brechner Report, the latter of which was critical of the material that the KCSO media department presented to the public as fact.

In response to the Emerald's question about why his office was not pursuing criminal charges, Satterberg said in his Nov. 23 email that "[i]n terms of criminal charges, former Chief Criminal Deputy Mark Larson reviewed this case when it came to us and determined that, based on the evidence, we could not proceed criminally."

"That's because in this case our office is required to review this investigation from the pre-[Initiative] 940 legal standard that was in effect at the time, which required us to prove that the police officers acted with the mental state of 'malice' beyond a reasonable doubt," Satterberg said in the email. He continued, calling the malice requirement "an impossible standard to meet in a case where there is little or no prior interaction between the decedent and the police."

The medical examiner concluded that Molina had shot Le multiple times in the back.

The KCPO would have had access to the medical examiner's report that showed Molina shot Le in the back.

Campiche said that, if this were the case — if Molina had, beyond a shadow of a doubt, acted lawfully, the Ninth Circuit Court of Appeals would not have dismissed Molina's appeal and ruled that a jury must decide whether Molina should get qualified immunity in the civil rights case. Campiche believes this question should be presented to a criminal jury.

In other words, Campiche said in a Dec. 3 telephone interview with the Emerald, "malice and qualified immunity are two names for the same duck."

"The duck is, the officer thought he was acting legally [and would have gotten qualified immunity] — or, he has malice, because he is willing to break the law to kill this guy," Campiche said. "[The KCPO] say they are not going to file [criminal charges], because they can't meet the malice requirement. … The trial judge and the court of appeals has said that a jury well could determine that [Molina] is not entitled to qualified immunity — that he acted with malice, he knew it was wrong. It's the same thing."

But because Satterberg will not bring criminal charges against Molina and will not refer the case to the attorney general's office, he is preventing a criminal jury from making that decision, Campiche said.

Satterberg's decision to keep this from a criminal jury bleeds into the conflict of interest that the Le family's lawyers say Satterberg is facing: he cannot both defend King County and be expected to bring criminal charges against Molina that would negatively impact Molina's employer, King County, the KCPO's client in the civil rights case.

Campiche said in his Dec. 3 telephone interview that he believes Satterberg does not want to ask the attorney general's office to handle the case either, because the attorney general's office could choose to charge Molina, because he shot Le multiple times in the back.

"And then that gets around this malice requirement without any problem. If the jury concludes that Deputy Molina shot this guy in the back, while he was [running] away, his defense that he acted to stop imminent serious injury or death goes out the window," Campiche said, referring to the conditions under which Molina would have been acting within the scope of his duties when he shot Le.

Because of the way the law works, any determination in a criminal trial against Molina would carry over into the related civil trial as fact.* This means there is and has been no incentive for Satterberg to either file charges against Molina or bring the case to the state attorney general's office for the last several years, as both would risk the possibility of a criminal trial. Even though the KCPO does not directly represent Molina, it represents King County — and by extension, Molina's employer, the KCSO, since the sheriff's office is a county entity. Therefore, given the Le family's Monell claim, any determination in a criminal case that involved an employee of a county entity — in this case, the KCSO — would carry over as fact into the civil case, meaning that King County may also be held liable. However, as noted earlier, it is unlikely that there will be an inquest or that Satterberg will bring criminal charges or refer the case before the civil trial concludes, particularly given that the civil trial's start date is just a few months away.

In response to the Emerald's question about a conflict of interest, Satterberg said that "[s]tate law (RCW 36.27.020) requires the prosecuting attorney to represent the county in civil proceedings. To represent the County without a conflict of interest, our office has separate divisions. Our Civil Division has no involvement in Criminal Division cases, and no input on criminal charging decisions. This has been a long-standing practice that separates the decision regarding criminal liability from the decisions on the defense of civil liability."

He further clarified this specifically in his Nov. 23 email, saying that "the Civil Division of our office handles tort litigation defense of King County government and does not collaborate with the Chief Criminal Deputy in our office who has a role in the inquest process."

The KCPO's Public Information Officer, Casey McNerthey, also said in a Dec. 4 email that "[i]n the past when our office provided the function of organizing an inquest (and in the future, should we do so again), the deputy or deputies organizing the inquest would not collaborate (or speak about the substance of the inquest) with the deputy or deputies in our office representing the County in a related lawsuit."

But Campiche said that the idea that the different divisions of the office don't talk about cases doesn't hold water. He explained it to the Emerald this way in a Nov. 23 telephone interview: "If you went to the [Washington State] Bar Association and said, '[A law firm's] office in Tacoma [and] office in Seattle are representing both sides of a lawsuit, or another lawyer from [the same law firm's] New York office had brought a civil action against a client who is represented by the Seattle office some time earlier, and [that lawyer] said, 'Well, we are far apart, there's a giant wall between us — there is no conflict,' the Bar would say, 'Wrong. There is a forever conflict.'"

"There may be a practice, or it may be the prosecutor's desire that they are separate, but they are not," Campiche continued. He later added: "Here they are each arguing before the Federal Court and the [Ninth Circuit Court of Appeals]. Molina's attorney argued Molina was entitled to qualified immunity as a matter of law, and the County argued that Le's Constitutional Rights, then, were not violated. The Ninth Circuit [Court of Appeals] found both claims frivolous — so frivolous in fact that they imposed sanctions."

The Emerald reached out to King County Executive Dow Constantine, but his office declined to comment, citing pending litigation.

A few hours before this article was published, Gov. Jay Inslee announced in a press conference addressing budgeting equity that one of the recently-created Washington Coalition for Police Accountability's (WCPA) priorities in 2021 will be to focus on creating a prosecutorial arm that is specifically independent of county prosecutors' offices. Inslee said that he felt "confident" that this position will be set up.

The Emerald also received the WCPA's 2021 legislative agenda, which specifically laid out the creation of this position as a priority.

"Police should not investigate police. We need a statewide entity to conduct criminal investigations of police use of force and prosecutions by attorneys who are independent of the county prosecutors," the legislative agenda reads. "We support transition to non-law enforcement professional criminal investigators within five years; create a community led advisory board."

In response to a Dec. 14 email from the Emerald, WCPA member Paul Benz told the Emerald in a Dec. 27 email that, in his opinion, the potential conflict of interest the KCPO faces in the Le case demonstrates the need for a prosecutorial arm that functions independently of county prosecutors.

"[B]ottom line on this is to achieve some kind of justice for those lives who've been taken by law enforcement — as there's been little to nothing achieved for" a long time, Benz said in his email. "The more independent the investigation and prosecution of homicide cases can be that have been committed at the hands of [law enforcement] the better the chance of a prosecution."

*Author's Note: In Washington State, the opposite does not apply — findings in a civil trial do not carry over as fact into related criminal trials — due to the fact that certainty must be established beyond a reasonable doubt in a criminal trial, whereas certainty must be established to a slightly lesser degree in a civil trial.

Carolyn Bick is a journalist and photographer based in South Seattle. You may reach them on Twitter, and check out their other work here and here.

Featured image is a photo of Tommy Le, courtesy of the Le family.