Clallam prosecutor foes trade barbs in heated campaign; Tuesday's vote nonbinding and real one comes in November

By Rob Ollikainen
Peninsula Daily News

Charging standards at issue

By Rob Ollikainen
Peninsula Daily News

PORT ANGELES — After taking office as Clallam County's chief lawyer, William Payne adjusted charging standards to prosecute felony drug possession and certain property crimes that were previously declined.

“I decided first day, the first thing I would do is to start charging felony possession of controlled substance as felony possession of controlled substance,” Payne said in a recent interview.

“We're talking mostly heroin and methamphetamine.”

Payne was appointed as prosecuting attorney by two of three county commissioners in January to serve the final year on retired county Prosecutor Deborah Kelly's term.

He is running in this year's election against county hearings examiner and former Chief Deputy Prosecuting Attorney Mark Nichols in what figures to be a hotly contested race.

Due to a staffing shortage toward the end of Kelly's administration, drug possession and many Class C felony property crimes were declined for prosecution or returned to their city of origin to be prosecuted as misdemeanors.

Payne, a former assistant state attorney general who once worked as a felony deputy in the office he now oversees, said he had multiple conversations with law enforcement and city officials prior to taking office about the need to charge drug possession as felonies.

“We know in this county, we have a heroin epidemic,” Payne said.

By eliminating the chief deputy position that Nichols vacated, hiring an additional felony deputy and promoting another to chief criminal deputy, Payne said the office is more equipped to charge crimes appropriately.

All felony cases are now reviewed for evidentiary sufficiency.

“We're not excluding anything,” Payne said.

The decision to press charges or not is made in the prosecutor's office, and the practice of kicking felony cases back to the cities has stopped, Payne said.

Cities do not have the statutory authority to prosecute felonies.

Port Angeles City Attorney Bill Bloor said the new charging standards represent a “positive change.”

“In the prior year before Will Payne took the office, we had received something like 120 or 130 cases that were felonies,” Bloor said last week.

“That adds quite a bit to our caseload and also to our cost.”

Sequim City Attorney Craig Ritchie said Payne has taken a “slightly different approach” than his predecessor.

“I think he's trying to make it so that felonies are handled as felonies and misdemeanors as misdemeanors,” Ritchie said.

“It looks like he's handling more felony cases rather than bouncing them back. So that's good.”

Beyond the budget impacts, Bloor said there is a public expectation and legislative mandate that certain conduct be prosecuted as a felony.

“It's the right thing to do,” Bloor said.

Through the end of June, the felony division of the county prosecutor's office charged about 75 possession-of-a-controlled-substance cases that would have been declined in the past, Payne said.

To handle that additional caseload, Payne reallocated funds from the dissolved chief deputy's position to hire an extra full-time felony deputy, a position now held by Michele Devlin.

Payne now has four full-time criminal prosecutors, up from the three there before he took office.

Also, Payne is assisting the trial deputies by handling some criminal cases himself. He splits his time between civil and criminal cases and managerial duties.

Payne hired civil deputy Kristina Nelson-Gross in March. She and Payne advise Clallam County elected officials and department heads in legal matters.

In addition to the reorganization of the office, Payne and his criminal deputies are “trying to make really good, fair, reasonable plea offers,” Payne said.

“We're not trying to overcharge cases.”

Since Payne took office in January, there have been nine criminal trials in Clallam County Superior Court, Court Administrator Lindy Clevenger said Thursday.

During all of 2013, there were 34 such trials, costing the county between $3,000 to $5,000 each, depending on the size of the jury pool, Payne said.

“I think the fact that we're making what we consider to be fair, reasonable plea offers causes cases to settle more appropriately,” he said.

“We're trying not to continue cases out. We're trying not to switch them between deputies. We're trying not to continue cases. We're trying to keep them moving through the natural progression of the thing.”

He added: “That doesn't mean we're trying to give away the farm.

“We're not doing that.”

In another change in the felony division, nonviolent drug offenders who are eligible for adult Drug Court are being offered access to the diversion program at arraignment.

“And then the defendant has three choices,” Payne said.

“They can accept the drug court offer, they can go to trial, or they can plead guilty.”

It used to take months for a defendant to get into Drug Court, Payne said.

“We want this to happen faster,” he said.

Introduced by former Clallam County Superior Court Judge Ken Williams in the late 1990s, Drug Court requires at least a year of chemical dependency counseling, regular drug testing and weekly court appearances.

Charges are dismissed if a defendant graduates.

Clallam County Drug Court Coordinator Stormy Howell said 30 adults have entered the program so far this year.

There were 39 new enrollees in all of 2013, 41 in 2012 and 30 who entered adult Drug Court in 2011, Howell said.

“So far this year, we have had a fairly significant increase on the number of people that are entering the program, which is a great thing,” Howell said.

Examples of Class C felony property crimes that were previously declined for a lack of resources include second-degree theft, second-degree possession of stolen property, vehicle prowl and forgery.

Most of the felony cases that were sent down to the cities or to District Court do not have an appropriate misdemeanor counterpart, Bloor said.

Possession of methamphetamine, for example, was being charged as possession of drug paraphernalia, he said.

Although it's too soon for statistics to bear it out, Payne said there is anecdotal evidence that charging felony drug possession has resulted in a reduction in property crime.

“It's too early to see, although I believe there will be a direct result because we know that the drug people are stealing people's stuff, and they're hawking it and etcetera to get money,” Payne said.

When Payne took office, there were 169 referrals — cases that law enforcement referred to prosecutors without making an arrest, he said.

“We are currently working through the referral cases and either declining to charge, requesting more information from law enforcement or charging the case if it is a felony,” Payne said.
EDITOR'S NOTE — See related Aug. 4 story, "An important non-election? Both Clallam prosecutor candidates see value in Tuesday's nonbonding vote" — http://www.peninsuladailynews.com/article/20140804/NEWS/308049962


PORT ANGELES — Mark Nichols says the changes William Payne has made in the Clallam County Prosecuting Attorney's Office came straight out of his own playbook.

That's not true, said Payne, who was appointed to the post in January and is running against Nichols for a four-year term as the county's chief lawyer.

“My position is that he took those ideas from me,” Payne said in an interview.

Although Payne and Nichols are on Tuesday's primary election ballot, the race won't be decided until the Nov. 4 general election.

Nichols said Payne obtained a copy of his application prior to the Jan. 13 interviews with the Board of County Commissioners prior to the appointment and that he used some of his ideas to get hired.

“To be clear, it's my position that Mr. Payne has literally implemented the ideas that I presented to the board as seasoned, reasoned solutions to real-world challenges that were confronting the prosecutor's office under Ms. [Deborah] Kelly's administration,” Nichols told the Peninsula Daily News.

Nichols served as Kelly's chief deputy from 2006 until her retirement at the end of 2013.

Payne was then appointed by two of the three county commissioners to serve the final year on Kelly's term.

Nichols, Kelly's choice for interim prosecutor, resigned from the office Jan. 27 — the same day Payne was sworn into office — and was the commissioners' choice for county hearings examiner.

Restructuring office

In his application packet, Nichols proposed to dissolve the chief deputy position and use a portion of those funds to hire an extra felony deputy, which would “allow for many if not all of the felony cases that are currently being declined based on existing charging guidelines to once again be prosecuted as felonies.”

Payne restructured the office in the same way Nichols had proposed and began charging felony drug possession and certain property crimes that were previously not prosecuted.

“I'm honored that he's endorsed my ideas and implementing them during his time as appointed prosecutor,” Nichols said.

“I think they were overdue, benefit the community and will help the Prosecuting Attorney's Office to function more efficiently,” he added.

“I would implement them further in a way that would make them more compelling with respect to results being realized in a way that the community will see.”

Payne: his ideas

Payne does not dispute that he obtained copies of the questionnaires, which are public records, but said the changes he has brought were his own ideas.

The ideas, Payne said, stemmed from conversations he has had with law enforcement and city officials, attorneys, judges, county commissioners, crime victims and other citizens.

“Yeah, they were on [Nichols' application], and they were written down, but I've been talking about that publicly to everybody for years,” Payne said.

Clallam County Sheriff's Sgt. John Hollis confirmed that he spoke with Payne about the need to charge felony drug possession prior to Payne's appointment.

“I talked with Will about it,” Hollis said.

Payne said he reviewed the applications of Nichols and co-finalist Robert Strohmeyer to learn about his opposition.

Commissioners held separate half-hour interviews with Nichols, Payne and Strohmeyer, the three candidates that the Clallam County Republican Party recommended as Kelly's successor, before appointing the former Marine in a contentious board meeting.

Questionnaire, interview

When asked why he didn't put down his ideas for restructuring the office and changing the charging standards on the questionnaire, Payne said he “didn't see a good place for that to go.”

He added that he preferred the flexibility of an open interview to make his pitch.

Commissioner Jim McEntire during the interview asked Payne to weigh in on the budget and staffing level in the prosecutor's office.

“That office has been kind of management-heavy, if you will, for the last few years,” Payne told commissioners.

“I don't think you need a chief deputy. So that person, depending on what they're doing, their money, part of their salary, part of their money or however that works, could be used to hire another prosecutor.”

Nichols said it was an “interesting factoid” that Payne's verbal responses were “mirrored in the application materials to the extent they stray into responses that appear in either mine or Bob Strohmeyer's materials but don't in his written applications.”

“It's something that people may not be aware of,” Nichols said.

“I'd just thought I'd highlight it.”

Payne said he figured Nichols and Strohmeyer would review his application.

“If [Nichols] did, that's fine,” Payne said.

“I don't care.”

Chief criminal deputy

Nichols effectively promoted felony deputy John Troberg to chief criminal deputy during his four-week stint as acting prosecuting attorney between Kelly's departure and Payne's arrival.

Nichols did not process the hiring paperwork, however, to “avoid tying the hands or presenting a fait accompli to whoever was ultimately appointed.”

After taking office, Payne wasted no time making Troberg's promotion official.

He added a full-time felony deputy a short time later and began to prosecute felony drug possession and property crimes that were previously declined or referred to the cities.

Payne noted that Nichols had every right to make his own hires and change the charging standards as acting prosecutor.

“If these were really his ideas, then why didn't he do it?” Payne asked.

“I've been talking about these ideas for years.”

Nichols said there was nothing illegal or unethical about Payne's review of the job applications.

The uniform prosecutorial evaluation questionnaire is a public document, Nichols noted, an “open book for the world to see.”

“If you're asking me whether I believe that it violated the spirit and intent of the hiring process, I believe that it did,” Nichols said.

Embezzlement cases

If elected, Nichols said he would retain the office structure that he proposed, apply for more grants and “take a much more critical look” at embezzlement cases.

“I've got some others,” Nichols said. “But for obvious reasons, I'm not going to delve into those now.”

In a Monday email, Payne said his “actions speak louder than words.”

“My opponent chose on his own accord to quit his job in the prosecutor's office when I was appointed by the commissioners,” Payne said.

“I have remained true to my word and implemented the changes I told citizens, law enforcement and city officials I would implement when in office.”

Nichols said he put a lot of time and effort into his written application and “spelled out very specific solutions.”

“And the reality is that they do not appear in Mr. Payne's materials,” Nichols said.

“I am glad that he has implemented these things because my interest is in helping this community,” he added.

“Serving as prosecutor is the best way for me to make a positive, critical contribution to this community, which is my home,” Nichols said. “These ideas were intended to do that.

“They have been implemented — not by me, by somebody else. But it is to the benefit of the community at large.

“It's to the benefit of the relationship between the county and the cities, and it's to the benefit of the people who work within that office.”

________

Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 5072, or at rollikainen@peninsuladailynews.com.

Last modified: August 04. 2014 7:46AM
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