Courtesy photo

Courtesy photo

Double jeopardy: Lack of Bothell court recording leads to mistrial, conviction, reversal

Two years later the defendant from Bothell is free of conviction.

A technical error can lead to larger issues.

At least this was the experience for Diane Wu, a Bothell resident who faced a fourth-degree assault charge in municipal court. The trial was moving into closing arguments in 2017. A disagreement on a rebuttal witness the city prosecutor intended to call led the trial judge to adjourn for the day.

However, soon after staff at Bothell Municipal Court discovered something that would lead the court to rule a mistrial — meaning the trial process would start over again. It was this decision that led defendant, Wu, to sell her Seattle hair salon and stretch her family ties to their breaking point, she said.

For Wu’s lawyer Soroosh Abdi, the trial, and the decisions made by those in charge, would be like no other he had faced in his years representing people. It would be two years before a solution was found.

Court staff told the judge Wu’s trial had not been recorded. The audio of the misdemeanor case was never documented due to an installation error. Some kind of court documentation is needed in the case of appeal. At Bothell Municipal, staff rely on audio recording to provide a proper record of what happens during court proceedings.

The court holds contracts with AVCaptureAll for its digital recording. Audio from courtroom proceedings are retained on the computer-based system, according to a notice of recording system failure. Because the software was inadvertently disconnected, court hearings in 2017 from Sept. 5-14 were not “properly recorded.”

After learning this fact, the court cited Court Rule 5.4 — which states, “in the event of loss or damage of the electronic record, or any significant or material portion thereof, the appellant, upon motion to the Superior Court, shall be entitled to a new trial” (only if the loss or damage of the record could not be attributed to the appellant’s wrongdoing).

“I, frankly, don’t see how we can proceed without an electronic record of the trial,” said then city prosecutor Rhonda Giger in a transcript of the hearing details. Later she added, “I don’t think anybody’s at fault for this; I think it is an unfortunate technology glitch, but I think both parties are equally prejudiced — potentially, the city, even more — by there not being a recording. “

The defendant did not request this new trial. Wu’s lawyer Abdi attempted to sway the judge toward continuing the trial as is. Instead, a new court date was set for 90 days later. And tax dollars used to hold the second trial.

For Wu, the mistrial meant additional time taken off from running her Greenwood business, Hair Bliss, and additional lawyer costs. The stress lingered as she waited for the second trial to arrive and her savings dwindled. Ultimately, she had to sell her business, which she had owned for four years.

“It seemed like my whole world was collapsing,” she said.

Wu filed a motion to dismiss based on double jeopardy and prosecutorial misconduct, appeal documents state. Included in the Fifth Amendment to the U.S. Constitution is the Double Jeopardy Clause, one that prohibits someone from being tried twice for the same offense — meaning the state could not use resources and power to make multiple attempts at convicting someone for an alleged crime.

Wu’s motion was heard in front of a trial judge pro tem on March 13, 2018. The court refused to entertain the motion and claimed it had no authority to consider the double jeopardy motion since it questioned the initial trial judge’s mistrial ruling.

An application of writ — asking the court to step in— in Snohomish County Superior Court was submitted. Again, Wu’s attempts failed. The judge presiding over the writ hearing said he felt there was a remedy of law available to Wu, even if she were to be found guilty at the potentially illegal retrial. She could appeal under double jeopardy grounds after a conviction.

At the second trial, the judge represented during Wu’s first trial recused herself. And this time Wu was found guilty of assault in the fourth degree, a charge that stemmed from a dispute at home between Wu and her son’s girlfriend.

By this time, Wu had no money left. But she wanted to appeal. That’s when her lawyer stepped in to help — appealing the conviction free of charge.

“He did it for free,” Wu said. “He appealed everything.”

In April of this year, Wu’s conviction was reversed, two years after the first trial had commenced.

At the reversal hearing, Wu read a statement out loud on the impacts the mistrial had on her life. After Wu had given up her business, spent her savings and her family became divided, she felt there was no recourse for the time she lost. But she was relieved that the double jeopardy clause kept her from facing worse outcomes — all stemming from a technical error.

Abdi said the Wu case is an unfortunate example of judicial recklessness in the legal system. That the Bothell Municipal Court had a duty to Wu and that they gravely failed her.

“The court was to ensure the protection of her constitutional rights as a defendant facing loss of liberty,” he said. “However, the court willingly chose to ignore our double jeopardy arguments. Doing so, they allowed an illegal trial to proceed against Ms. Wu. Although today she is free and innocent, but at what cost?”

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