Lawyer In Dui Case Is Cleared -- Conduct Had Been Called Into Question

SAMMAMISH PLATEAU

As David Allen put it, almost nothing could be worse for a lawyer.

"This was every criminal defense attorney's worst nightmare, what happened here, that his former client killed another human being," Allen said.

Allen was talking about Stephen Hayne, a Bellevue attorney he defended in a three-day disciplinary hearing that ended yesterday. Hayne was found not to have violated any rules of professional conduct in handling a drunken-driving case nearly a decade ago.

The hearing also showed that despite well-intended laws and treatment programs, the work of the courts can be undone by overwhelming caseloads, a misplaced piece of paper and even varying interpretations of the law.

Everyone agreed that what led to the Washington State Bar Association hearing this week was a tragedy.

In July 1997, Susan West was driving a minivan on the Sammamish Plateau and struck and killed Mary Johnsen as she walked hand-in-hand with her husband. West pleaded guilty to vehicular homicide and was sentenced to nine years in prison.

Subsequent investigation showed West had a 20-year history of drunken-driving violations and had been involved in two drunken-driving cases - in Marysville and Issaquah - within 18 months in 1989 and 1991. Deferred prosecutions, a form of probation, were granted in each instance. State law at the time allowed only one deferred prosecution within five years.

Hayne acknowledged he filed a document in Issaquah in 1992 on behalf of his client, West, which did not mention the earlier drunken-driving case in Marysville. But he said he quickly corrected the mistake in a meeting with a judge.

Sachia Stonefeld, disciplinary counsel for the bar association, argued that such a meeting would not have changed the fact that Hayne made a misrepresentation to the court.

However, Allen, Hayne's attorney, argued that the burden was on the bar association to prove Hayne was guilty of misconduct and that a "clear preponderance" of evidence would be needed to show that Hayne committed an ethical violation.

Paul Larson, a Yakima attorney serving as hearing examiner, said if it were possible to "unring the bell," all parties might have done things differently in the cases, which took place more than five years before the fatal accident.

The bar's disciplinary office had recommended a reprimand; the most severe penalty would have been disbarment.

West had a history of alcohol-related driving problems dating to at least 1980. It was a 1989 drunken-driving case filed in Marysville that led to the hearing and where some of the first mistakes were made.

After West's conviction there, no notice of the violation was sent to the state Department of Licensing. Former Marysville Judge Jay Wisman testified that the court had never sent the notice to the Licensing Department, apparently because of staffing shortages.

Hayne said he was doing his duty to represent his client in taking advantage of the failure to report the Marysville matter to the Licensing Department.

"I didn't have anything to do with it not being reported," Hayne said. "It's my responsibility to find any flaw in the law which can be used to my client's advantage."

Hayne testified yesterday that he now thinks he was wrong. He said that after filing the Issaquah document, he had second thoughts and met with Judge Pro Tem Stephen Moore in his chambers and told him about the Marysville case. Moore decided a second deferred prosecution was allowable, although it was coming only 18 months after the Marysville case.

Moore didn't specifically remember such a conference but said it could have taken place. Hayne's version of the 1992 events was supported by his former law partner, Doug Cowan, and by West, who testified by videotape.

Stonefeld, the bar association's disciplinary counsel, argued that it made no difference whether such a conference took place, but that what was important was that Hayne had filed the false document.

Larson, the hearing examiner, concluded that he believed such a conference did occur between Hayne and Moore and that it helped correct the error.

"I believe that by going back to chambers, you mitigated this," he said.

During the three-day hearing, those testifying told how West's cases were handled in a flurry of activity, sandwiched among often more than 80 cases a day, with inexperienced prosecutors and overburdened courts often going 12 and 14 hours a day. Exhibits showed how evidence was mismarked and lost, incorrect entries were made of who was in court or who represented which defendant, and how such other parties as probation officers often knew defendants might be having multiple cases but still would recommend dismissal.

All the events would have been lost in obscurity if West had not struck Johnsen in 1997. Allen, in fact, told how such mistakes are common, but no audits are done of court cases, so such mistakes usually remain undiscovered.

Wisman, the former Marysville judge, acknowledged this week that a review of records showed his court was told of West's subsequent drunken-driving case in Issaquah.

Her violation presumably could have been enough to revoke her probation in Marysville, but Wisman said he followed the recommendation of a probation officer, who concluded that West was doing well in alcoholism treatment.

Wisman also told how alcoholics often have one relapse and said West otherwise appeared to be doing well. And, he added, the law then allowed a judge discretion in deciding whether to revoke a deferred prosecution.

Everyone in the hearing agreed that despite everything that happened from 1989 to 1992, none of it should be construed as having caused the 1997 accident.

Hayne himself expressed remorse over the Issaquah filing: "That's what I did, and I was wrong."