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Monday, October 17, 2005 - Page updated at 12:00 AM

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Judge has pattern of violating rights, complaint alleges

Seattle Times staff reporter

Mary Ann Ottinger


Age: 56

Experience: Admitted to the Washington State Bar in 1973. Trial lawyer specializing in medical-negligence law.

Judicial experience:

Appointed to the King County District Court bench in 1992. Has served mainly in the Issaquah court.

She was young and scared and, admittedly, foolish. But to this day, Sara Totten can't understand why she was ordered to spend more than a year in jail when her only crime was being a minor in possession of alcohol.

The punishment was later deemed out of line by another judge, and Totten was freed early.

The root of the problem, that judge wrote, was District Court Judge Mary Ann Ottinger, who sent Totten to jail without telling her she had certain rights, including the most basic: the right to a free lawyer.

In fact, Ottinger, who has been a district-court judge in King County since 1992, routinely violated defendants' rights, according to two complaints investigated by the Commission on Judicial Conduct. The first, which focused mainly on Totten, was resolved in June 2004 when the judge admitted her errors, was censured and promised to change.

The commission now says that Ottinger continued to show a "pattern or practice of violating criminal defendants' fundamental and constitutionally protected due process rights."

A month after disciplining Ottinger the first time, it began investigating new complaints that were strikingly similar to Totten's. That resulted in charges filed by the commission in June.

Ottinger, 56, declined to comment except through her lawyer, David Allen, who said the judge may have made occasional technical slip-ups, but she follows the Code of Judicial Conduct, which lays out ethical standards for judges. The real problem, he argues, is that some local governments aren't providing lawyers immediately to defendants in district and municipal court, and judges like Ottinger are unfairly being held responsible.

Jailed for an MIP

By the time Totten and Ottinger crossed paths, Ottinger had become a fixture in the Issaquah courthouse.

Ottinger presided over cases out of Issaquah, Sammamish, Snoqualmie and North Bend, among other cities. Government officials there were quite attached to her. In fact, when Ottinger was transferred to Redmond in 2003 in a reorganization of King County's district courts, those city governments fought vigorously to get her back.

Even before this, however, the Commission on Judicial Conduct was looking at Ottinger. In 2002, she was told of concerns about how she advised defendants of their rights. Ottinger said she would change her procedures, but the commission soon heard that she hadn't. The commission opened an investigation, and Totten's case became the centerpiece.

Totten's legal problems began in June 1999, when, at 17, she was caught drinking and registered a blood-alcohol level of 0.071 — lower than the legal limit for an adult but a crime for someone under 21.

By her first court hearing, in January 2000, she had turned 18. There was neither defense lawyer nor prosecutor there.

The hearing was over in minutes. Totten pleaded guilty. And Ottinger accepted the plea, even though defense lawyers say many judges won't let defendants plead guilty at their first court appearance without a lawyer. If they do, however, they're required to make sure the defendants know exactly what they're getting into.

Transcripts show Ottinger didn't tell Totten the rights she would be giving up if she pleaded guilty, nor the maximum sentence she could face.

She was sentenced to probation and ordered to enroll in treatment, attend Alcoholics Anonymous and get her General Educational Development (GED) diploma.

But at subsequent court hearings, the judge determined that Totten wasn't following the rules.

First, Ottinger sent Totten to jail for five days. Over several more hearings, she imposed an additional 20 days. At each of these hearings, Totten could have had a lawyer, but Ottinger never said that.

Finally in September 2001, Ottinger sent Totten to jail for nearly a year — making her total sentence 375 days, above the legal maximum for the crime, which is a year. Several defense lawyers said such a long term is highly unusual for a first offense.

Fellow inmates told Totten she had a right to a lawyer and helped her contact a public defender who not only got Totten out of jail about two months into her sentence but got her case dismissed as well.

The judge who released Totten called the violations of her rights "egregious."

In June 2004, the Commission on Judicial Conduct released the results of its investigation into the Totten case. As part of a settlement agreement, Ottinger admitted that she failed to protect Totten's rights, as well as the rights of numerous other defendants. "The nature of the violations cannot be overstated," the commission wrote in the agreement.

In addition, the commission found that she had provided behind-the-scenes legal help to cities in the dispute over her transfer, which she was prohibited from doing as a judge. The commission also said she treated her court staff poorly, an allegation Ottinger denied. The commission required that she attend judicial training and counseling to address her management practices.

Since 1982, an average of five judges have been disciplined each year; a handful of them were for violations similar to Ottinger's, according to commission records.

The right to a lawyer

While Totten still is angry, she concedes that she brought some of this on herself. Defense lawyers say that's what often happens when defendants go to court without a lawyer. Some defense attorneys see their job as part counselor; in Totten's case, that would have meant things like getting her into treatment and warning her what would happen if she failed.

Yet, according to Bob Boruchowitz, director of The Defender Association, a King County public-defense agency, defendants routinely don't get lawyers from the start.

"Every day in Washington courts, hundreds of people face criminal charges without lawyers and many of them plead guilty and go to jail, sometimes unaware they have a right to a lawyer," he wrote last year in Washington State Bar Association magazine.

To anyone who has heard the ubiquitous "right to a lawyer" speech on television cop shows, this might seem hard to believe.

Nonetheless, for years, many local governments across the state have not provided lawyers to poor defendants at their first court appearance in misdemeanor cases, which are under the purview of district and municipal courts.

(It's standard to get a lawyer at first appearance in Superior Court, which handles felonies. Misdemeanor defendants who qualify for public defenders get them at later hearings. In some jurisdictions, like King County, public defenders have long been provided from the start for in-custody defendants but not to those out of custody.)

Boruchowitz, who has studied the issue in depth, said many jurisdictions opt against footing the bill for lawyers at defendants' first appearance in district or municipal court. And few defendants can afford to come to court with their own attorney.

Arguably, the lack of lawyers wasn't causing serious harm in most cases because most defendants plead "not guilty" at their first appearance anyway, and are assigned lawyers later.

Nonetheless, the lack of lawyers is compounded by the fact that district and municipal courts are typically busy, making some judges feel rushed.

Ottinger cites this issue in her defense. She was put in the difficult position of handling a busy calendar, while protecting the rights of both defendants and victims, all without the assistance of a defense lawyer, said Allen.

"There's a tremendous crush of people in there," attorney Allen said. "She feels it's unfair if she only gets through half the calendar ... . She didn't do this from spite or nastiness."

The commission disagrees, saying her practices were "stand-alone unique and defective," a commission lawyer said during a deposition in the recent case.

Concerns about lawyerless defendants have recently come to a head. Part of the impetus was Boruchowitz, who highlighted the problem and prodded officials. But another factor was cases against Ottinger and two municipal-court judges who were recently disciplined for similar problems.

King County agreed earlier this year to provide defense lawyers for all defendants making their first appearance in district court. And since the new charges were filed, Ottinger has refused to hear cases for jurisdictions that do not provide defense lawyers immediately, Allen said.

Still, numerous jurisdictions, including Bellevue, Burien and Kenmore, don't provide counsel at misdemeanor arraignments, according to information provided by King County District Court Presiding Judge Corinna Harn.

New complaints

Now the commission alleges that Ottinger didn't adequately change her ways and continued to violate defendants' fundamental rights. The new complaint lists 12 examples of defendants who were allegedly denied their rights during the summer of 2004.

There is Ryan D. Carter, who pleaded guilty to driving while intoxicated with a blood-alcohol level of 0.337 and appeared before Ottinger for a probation violation. According to the complaint, she didn't tell him he had a right to a lawyer, nor that he had a right to contest the allegations.

There is Jorge Vasquez-Ortiz, who was accused of domestic violence and was provided a Spanish interpreter in court. The transcript shows the judge told him some, but not all, of his rights, but it appears he didn't understand everything.

Vasquez-Ortiz said he wanted to plead guilty. When the judge asked whether he wanted to proceed without a lawyer, he asked, "Are they going to have an attorney here for me?"

Yes, but "not today," she said.

She didn't tell him the consequences of his plea, including the possible sentence, or concerns like possible deportation. This violated his constitutional rights, the complaint said.

Allen countered that there are other factors that should be taken into account. In the case of Vasquez-Ortiz, for example, the interpreter certified that the defendant understood what was going on, only later filing a declaration stating that Vasquez-Ortiz had been confused.

Barrie Althoff, who was executive director of the Commission on Judicial Conduct when the recent complaint was filed, explained it this way.

"It's the judge's obligation to make sure the person gets a fair hearing. If there's some doubt, the judge has a remedy to that."

The commission has scheduled a December hearing on the complaint. If Ottinger is found to have committed the violations, she could face discipline ranging from admonishment, which is a written caution to the judge, to removal.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Copyright © 2005 The Seattle Times Company

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