This is why Whatcom prosecutors sought to stop a new judge. He claims intimidation

  • In US
  • 2023-02-05 13:00:00Z
  • By Bellingham Herald mcclatchy articles

Whatcom County prosecuting attorneys don't believe newly elected Whatcom County District Court Judge Jonathan Rands can fairly handle any DUI cases, and they've taken drastic steps to ensure he won't get the chance to prove it.

Rands has argued that's untrue and is pushing back on what he sees as an attempt by the prosecutor's office to tie his hands and intimidate him in his first few weeks as judge.

Many of these arguments will be on display next week as a Whatcom County Superior Court judges will decide whether Rands will be required to remove himself from presiding over more than 100 criminal cases in District Court.

Whatcom County District Court consists of two elected judges who serve four-year terms and preside over cases that include criminal misdemeanors, no-contact orders, general civil actions, small claims and infractions, such as traffic tickets and code violations.

Rands was elected to the District Court bench after winning the November election with 62.3% of the vote. Rands won against senior deputy prosecuting attorney Gordon Jenkins, who remains an attorney within the county prosecutor's office.

Rands was sworn in as judge Jan. 9 and took over the caseload of his predecessor, former Judge Matthew Elich, who retired.

Breath test evidence

The issue of DUI case evidence, first brought up in Kitsap County, has now been taken up by the Washington State Supreme Court. The case could be heard during the high court's spring or fall term. It also links back to Rands. Before becoming judge, he ran a multi-county DUI defense law firm.

In late November and December, Rands partnered with George Bianchi, a fellow DUI defense attorney, to file so-called "Kitsap" motions in two Whatcom County District Court cases that alleged the software used by breath test machines, and whose results are often entered by prosecutors in drunken driving cases, didn't follow state law. The two cases became representative for all DUI cases in Whatcom County, according to court records.

On Jan. 10, his second as a judge, Rands was asked whether he would hear the motion arguing to suppress breath test evidence. Rands said he'd already looked into whether he could rehear the motion and decided he could, court records state.

Rands said he wouldn't remove himself from hearing the cases where a breath test motion had been filed, and said attorneys could present him with the records from one of the two cases he had handled as a private defense attorney so he could make his own ruling on the breath test motion, according to court records.

Ethics concerns

Rands' comments concerned a deputy prosecutor, who then informed his supervisor and other attorneys within the county prosecutor's office.

Attorneys in the prosecutor's office said Rands' comments suggested he would grant a motion to suppress the breath test evidence if it were filed in a case he was presiding over, court records state.

"No one in the District Court Division had ever heard of any other judicial officer suggesting that it would be appropriate for them to review a record which they created as an attorney to rule on their own motion," the records state.

District Court prosecuting attorneys subsequently filed around 50 affidavits of prejudice against Rands in cases where a breath test motion may be possible, according to court records. The cases included DUI, physical control and minor operating cases filed before Nov. 6, court records show.

Affidavits of prejudice are filed against judges in cases where attorneys don't believe they can have an impartial trial or hearing before the judge. During a court session on Jan. 17, Rands declined to remove himself from handling the affidavited cases, saying the affidavits were untimely, and then made rulings in some of the cases.

Prosecutors "became extremely concerned" about Rands' ability to fairly hear DUI cases, according to court records.

The attorneys believed Rands' was revealing he couldn't remain impartial in DUI cases and that he was attempting to keep as many DUI cases as possible under his jurisdiction, the court records state. They argue it would be "irresponsible" to allow Rands to handle any DUI cases. The result: a total of 133 affidavits of prejudice against Rands in all remaining DUI cases before him, filed within his first three weeks on the bench.

"I know from my experience in District Court that drunk drivers present an extreme threat to community safety," deputy prosecuting attorney Levi Uhrig wrote in court documents. "Impaired driving is a frequent cause of property damage, personal injury, and death in Whatcom County and across Washington State. Effective prosecution of drunk drivers is one of our most important goals in the District Court Division."

The prosecutor's office also filed petitions Jan. 20 seeking writs of mandamus and certiorari from Whatcom County Superior Court that would require Rands to recuse himself in all the affidavited cases and would void any rulings Rands had made in the cases since prosecutors requested he not hear them.

The same day, a temporary restraining order was also issued against Rands, barring him from handling the affidavited criminal cases, The Bellingham Herald previously reported.

That order was vacated and a new one was issued during a Jan. 27 hearing in Superior Court. The new temporary restraining order also allows Whatcom County District Court Judge Angela Anderson to preside over the cases Rands is restricted from hearing.

Intimidation concerns

Rands' former attorney in the writs case has accused the prosecutor's office of using the affidavits of prejudice as a way to intimidate and retaliate against Rands due to personal or political motivations.

Stephen Hayne, the former attorney, argued that Rands didn't violate any laws and was following court rules when he denied recusing himself from hearing the affidavited cases in District Court.

Hayne argued court clerks had been announcing since November and December that Rands would be taking over cases previously assigned to the retiring judge and would begin handling them in January, the court records state. Because of this, the affidavits filed against Rands were untimely, Hayne wrote.

Hayne also raised concerns with how the temporary restraining order was issued and accused the prosecutor's office of deliberately filing the request for the order in a way that denied Rands, and District Court, an opportunity to be heard on the matter, the court records show.

Shane Brady, a special attorney appointed Jan. 27 to represent District Court, and by extension Rands, filed documents in the case making similar arguments and added the affidavits are preventing a newly elected judge from doing his job.

Brady contends legal actions barring one of two seated judges in District Court from hearing more than 100 cases prevents the District Court from serving the public. Rands had "barely put on his robe" before the prosecutor's office filed its affidavits, Brady wrote.

"The State couldn't even give the public one week to allow the judge they elected to perform his duties unfettered," Brady wrote. "There is no comparing whatever the prosecutor's office interest is to the voting public's will and allowing Judge Rands to perform his duties."

Nothing about Rands' decision to deny recusing himself from hearing the affidavited cases prevents attorneys from still prosecuting the cases or filing motions in them, Brady also wrote in court documents. The prosecuting attorneys are free to prosecute the cases without hindrance from District Court, he stated.

Rands has also stated that if breath test motions are made in cases he is handling, or if there are requests made that are related to documents and issues he helped create and argued as an attorney before becoming a judge, he will recuse himself from handling those motions, court records show.

While the prosecutor's office can disagree with Rands' decision to not recuse himself, it doesn't justify the extraordinary steps it has taken to request a higher court take emergency action, Brady wrote.

Brady has requested the temporary restraining order be vacated and that the emergency measures the prosecutor's office is requesting be denied, court records show.

A hearing will be held Feb. 13 where attorneys will make arguments regarding the merits of the overall case and the measures the prosecutor's office is requesting the higher court take against Rands.


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