ANG Special Edition: Organized, Relentless, and Ruthless – When Public Defenders Hold Power Accountable

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Myself and three other attorneys up here filed a petition to have the sheriff recalled. He's been in office for less than a year and has already made too many terrible decisions to even get into. But so we filed a recall petition back in May, argued it in June in the, like called the trial court level. And then he appealed it up to the Supreme Court. And so we just last week got the decision.

From the Supreme Court that we won the case. And now we get to sing along to the voters.

It's season three of Another Not Guilty. I'm David Moore. Here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

These stories are about the not guilty as public defenders get on a daily basis in an unjust criminal system.

With the deck stacked against us.

Another Not Guilty.

All right. What's up, everybody? Welcome to another Not Guilty. We got a special edition today. Us public defenders, you know, aren't busy enough down there in the trenches.

We also get involved in the community. But before I talk about that, let me introduce our co-host today.

Hey, what's up, David?

His name is Nikhil, guys.

Hey, it's been a while.

Maybe you've heard of him before.

It's been a while. It's been a while. But back in it, you know, COVID's keeping us busy.

Busy, but still out there, still doing the fight.

Like you were saying, man, it's like, it's been such a crazy six months. And, you know, I think we've really, there's just so many things like mask off about, you know, things that we as public defenders talk about all the time, right?

Like the jails are unsafe, you know, coercive pleas, trials have so many, there's so many fundamental, you know, inequities and resources between the prosecution and defense.

All these things we've talked about for, you know, a couple of years on this podcast.

And COVID has really like, you know, ripped that mask off in so many of them.

But recently here, I mean, you know, what's really kind of caught my attention this week or actually this past month and, you know, in L.A. where we practice is, there's just been so much attention on the county sheriff here in L.A. County.

And, you know, there's been a series since George Floyd was, you know, murdered.

There's been like, I don't know, seven to 10 killings in the L.A. County Sheriff's Department, which have all, you know, been, you know, scrutinized to some degree, a lot of community action about them.

The jail conditions about what's going on in the jails, you know, the rapid spread of COVID, the inability to reduce COVID infections and keep people safe in the jails.

And also just being like a hotspot of infection for the larger community continues to be a problem, you know, in addition to, right, sexual and physical violence that has always been rampant or allegations in the jails.

Here in L.A. County, right, there's been national news about, you know, gangs in the right.

L.A. County has a gang problem.

Yeah. Gang problem in the sheriff's department.

Right. There's like seven to 10 different like identifiable sets in the clicks or whatever.

Yeah.

The Proud Boys, not Proud Boys, 3,000 Boys, 2,000 Boys, execute.

One of them is called the Executioners.

Right.

And so all this stuff is coming out.

Don't forget the old school gang, the Vikings.

Vikings.

Probably formed in the 80s.

Yeah.

The Vikings.

Yeah.

Back then it was just a sports team name.

Yeah.

Right.

They're like, okay, let's go.

Let's go with this.

Los Angeles Vikings.

You know, another thing that, you know, I've been watching too is like how sheriffs a lot with, you know, COVID has really brought up a lot of like we should be defending.

Against it.

People are potentially losing their homes and evictions.

And the sheriff, right, also plays a role in serving, you know, notices and physically evicting people from their homes.

And so like all this, you see the sheriff is just kind of like this has plays this role in every aspect and people keeping their homes and serving, you know, civil orders and the jail safety.

And then just in the traditional, you know, arrest and detain and prosecute, you know, assistant police in the community.

Yeah.

So like, it's like, wow, this, this, this is a really intense, you know, and very pervasive office.

And it's also interesting because it's, you know, sheriffs are generally elected as opposed to police chiefs who are appointed by a civilian, either a city council or a mayor, you know.

And so here in L.A. County, right, we've seen so much, a lot of the people that are in charge of the sheriff's budget really go to war, you know, essentially with the sheriff over, you know, who controls who.

And there's been calls for resignation and a lot of community members asking, you know, are sheriffs really, you know, appropriate for the 21st century?

Do we really want these, you know, kind of these elected officials who are kind of going kind of on their own agenda?

Well, you know, we're not the only county that's fighting their, their sheriffs right now.

Is this going on anywhere else or is this an L.A. County problem?

No, you know, it turns out, Nikhil, that this is a nationwide problem.

It's a systemic, systemic problem in the nation.

The sheriffs are out of control on some level.

You know, I always like seeing Sheriff Clark on Fox News talk about.

With his, like, 50 medals.

You're like, what are these medals?

His big cowboy hat.

Yeah, isn't he from Minnesota?

Talking about, you know, spinning that old, that old school story of the good guys getting the bad guys.

Oh, yeah.

Cleaning up the streets.

I mean, but isn't, like, the word, the sheriff, I mean, isn't the sheriff, like, the most, like, like, harkens back to this, like, cowboys and Indians, like, old Wild West.

Kind of relic from the past.

You know, Nikhil, I don't think we're the only county with this problem.

I feel like we can call anywhere in the United States, and they may have a problem with their elected sheriff also.

Let's, uh...

Why don't you go through that contact list and see if...

Let's go.

Call one of these PDs that you know, David.

You know, as the producer and creator of Another Not Guilty, I get in contact with a bunch of PDs, and I would just go through my Rolodex here and just see what could happen.

He's doing one of those Wheel of Fortune.

Now, yeah, that's spinning the wheel.

Press it right.

Hey, this is Colin.

Colin, what's up, man?

This is David from Another Not Guilty.

How are you doing today?

Hey, how's it going?

No, I'm doing great.

Thanks for having me.

I'm sitting here with Nikhil, and you are a badass public defender from Snohomish County, huh?

Snohomish County, Washington, up just north of Seattle, right on the I-5 corridor, and ending right before the mountains.

Aren't you guys known for being badass public defenders?

We've had a couple of you guys on the show already, haven't we?

Yeah, yeah.

Cassie and Gabe have both been on the show previously talking about cases.

You know, I wanted to come on and switch it up a little bit.

So you listen to those episodes with Cassie and Gabe, and you're like, man, I work with those fools.

I could do this.

Is that right?

Easy.

Easy.

Not a problem at all.

If those guys sound good, I can definitely get on the show.

Figured I'd give it a shot.

Yeah, man.

That's cool.

Go ahead, Nikhil.

Where are we going to go?

Oh, I was going to say, how big is the PD's office up in Snohomish?

Our office has, I think it's just around 100, 120 total people working in it.

That's a good size.

That's a pretty big size, yeah.

Yeah, so we've got a ton of attorneys in the felony unit, misdemeanor unit, voluntary treatment unit.

We have sexually violent predator unit.

And then we have, of course, our fantastic support staff doing legal assistance, paralegals, front office staff, social workers.

So, yeah, it's a big office, but a really closely knit office as well.

So, Colin, why did you contact the show?

Do you have a not guilty you want to share with us today or what?

Well, yeah.

Well, like I said, changing gears a little bit.

I contacted the show after I thought about contacting the show, and I talked to Cassie about it, actually.

Myself and three other attorneys up here filed a petition to have the sheriff recalled.

He's been in office for less than a year and has already made too many terrible decisions to even get into.

But so we filed a recall petition back in May, argued it in June in the, like, called the trial court level.

And then he appealed it up to the Supreme Court.

And so we just last week got the decision from the Supreme Court that we won the case.

And now we get to stick it along to the voters.

Congratulations.

So let me ask you a couple of things.

So who, why would anybody want to recall a sheriff?

I thought sheriffs are good guys protecting us from the bad guys.

Wouldn't that be nice?

So the sheriff sounds like he's just doing his job.

Why are you trying to recall him, man?

Yeah, he's, I mean, he's doing some kind of job.

I like to kind of compare him to a kid who got to be principal for the day at a school.

Because he just kind of comes in and takes over and does whatever he wants to help his friends out, gets rid of all accountability, doesn't really, you know, and comes out and just makes these blanket statements without, I don't know, maybe he's putting thought into it, but it doesn't seem like he's putting a lot of thought into a lot of the statements that he's coming out and making.

Can you get us, like, be a little more specific and tell us why, like, what it is about this sheriff that, because, I mean, I'll be honest, like, it's not like, as public defenders, it's not like we really like any sheriff, really.

We always have problems on some level with law enforcement, but, you know, you haven't led a recall of prior sheriffs.

So what, like, what is it about this sheriff that made you and other attorneys a petition to recall him in his first year?

So the catalyst for the recall itself was his coming out and saying that he wasn't going to enforce the law.

He issued public statements and did follow-up press conferences and everything like that and interviews just saying that he wasn't going to enforce the laws related to the coronavirus pandemic.

So he came out and said, the governor's stay home, stay healthy order is unconstitutional.

I'm not going to enforce it.

I'm not going to have my deputies enforce it.

You know, everybody needs to get back to work and make money for themselves and do everything else.

And we need to get over this whole pandemic.

Wow. Sounds very interesting to me that, like, you know, we're not talking about jailing.

We're not talking about enforcement of, like, you know, general laws.

He's just really just taking upon him the mantle of public policy for a public health crisis saying, you know, let's get the GDP back up, you know?

More or less. And he also wanted to refill the jail, though.

Yeah, that was another part of it.

Okay. Got you.

You know, when this whole thing started, our jail was just over 900 people.

And they've got new kind of temporary booking restrictions got put in place, temporary arrest policies, temporary bail policies and everything like that from the prosecutor's office.

So, like, when the pandemic happened, you know, a lot of people were released from jail, right, because of COVID.

So, there was a lot of people released without bail and, you know, really the jail population dwindled across the whole nation, including Los Angeles.

So, you're saying – go ahead.

So, you're saying –

Yeah. We dropped ours – it was one of the highest, like, rates of decrease, I think, in the nation was over two-thirds.

We were down under 300 people in the jail by the time – like, within a month, basically.

And that was consistent with what, like, all these emergency orders and were input from the prosecutor's offices and potentially even, like, you know, conditional releases to the homes or, you know, programming or – right?

Like, it wasn't just, hey, here's a ticket out.

We'll see you in six months, right?

Yeah. No, for sure.

They didn't just open the doors.

But actually, for the majority of these people, our office – the attorneys at the whole defender's office had to put a lot of – put on a lot of motions and then you would still get pushback and you would get deputy pressing attorneys coming in and still arguing against getting people released.

So, it was still, you know, still an uphill battle, but we did end up, like I said, end up with a two-third reduction in the jail population.

And then a month and a half later, he comes out with this statement that he's lifting all the booking restrictions at the jail.

He wants to increase the jail population because crime is going up and it's getting out of control and everything else.

Well, none of the empirical data actually supported that.

There wasn't any increase in crime based on the information that's available.

There wasn't even an increase in, like, people calling 911.

Which is kind of interesting, right?

Because it seems like a playbook that's being used around the country, right?

Like, there's almost like this power encroachment upon the traditional law enforcement narrative.

We keep people safe with lots of money for law enforcement, with lots of money for incarceration.

And when that narrative is now being challenged across the nation, you know, using evidence-based, you know, analysis, there's just this kind of, you know, meritless crimes going up.

We're at the most dangerous levels that we've ever been.

And, you know, the data that continues to come out is we're really at, you know, there might have been a slight uptick of crime in some jurisdictions over the summer.

But for the most part, you know, the United States still remains at, like, historic lows of violent crime, historic lows of property crime over, like, a 50- or 60-year period.

So that's kind of just this—and so does the sheriff answer any of these kind of claims in the press or in legal proceedings that has, you know, claims that crime is going up?

No, I mean, the claim that crime is going up, it was—I referenced it when we were doing oral argument for the recall, but it wasn't really something that they were challenging.

It wasn't a basis for one of our—one of the charges either.

But, you know, to his—for him, he was—he ran as a tough-on-crime, you know, law-and-order-type sheriff candidate.

And when the data doesn't support that, he's got to come out with his fear-mongering because otherwise he's going to lose his base.

So what else has this sheriff doing that deserves the recall?

Yeah, so the other—the other stuff—the first thing that he did, one of the first things he did when he took office was to get his buddies back into their positions.

So there were three deputies, particularly, that were filed—fired previously, and two of them were fired for violating constitutional rights by committing illegal—or performing illegal searches of vehicles and then lying about the searches to cover it up.

And then, you know, putting them in—putting in warrant affidavits and applications that they need to get a search warrant because they want to find out whether there's stuff in a trunk, even though they've already looked in the trunk and they know that it's there.

But, of course, leaving that part of the information out.

And then the excuse for that was, well, this is a—this is a new policy.

We didn't know that you weren't supposed to look in trunks.

We didn't know that you weren't supposed to do this without permission or without a warrant.

You know, I guess the Fourth Amendment's a new policy.

Because, you know, it's pretty hard to be fired as law enforcement.

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Yeah, hold on.

And so you said two were fired for the illegal searches and then the affidavits and the cover-up.

And wasn't one search terminated for a shooting, an officer-in-law shooting?

Yeah, so the third deputy was fired for shooting and killing someone during a traffic stop.

Which was deemed to be out of policy at the time, correct?

It was determined to be an unjustifiable shooting, yeah.

Got you.

And did that officer ever face criminal charges?

He did not face criminal charges.

The prosecutor determined that he wasn't going to be able to convict and so didn't file charges.

Got you.

And I think we've talked exhaustively about the difference in how officers get this kind of like,

almost like a motion for summary judgment before the charges are filed, right?

Right.

The prosecutor will be like, ah, this is a really tough case for me to win.

And let me write out all the bad arguments against this case in a memo and publish it for everybody.

And then I won't even file it, right?

Yeah.

It would be great if they would do that kind of analysis on every case.

For regular people, right?

On every case, yeah.

For all citizens, right?

All residents and people subject to the jurisdiction of the DA should get, especially for murder, I think.

That would be nice.

Yeah.

If they did, this show might not even exist.

I guess the other question, David-

To all the prosecutors out there making this show happen.

Yeah.

I just want to say thanks.

Yeah.

We wouldn't have the opportunity to be not guilty.

Are we good lawyers or are they just so bad that I don't know which one it is?

David just brought out something that I want to make sure that we talk about before, you know, because you're saying that reinstating these deputies was kind of like one of the first things he did that was a violation of kind of that public trust that, you know, we have of law enforcement.

But in California, we have pretty strict laws for police officer accountability, right?

Like they don't get to, they get, you know, mandatory representation in every interview.

They get days off between committing a criminal act and giving a statement.

I mean, they have more rights than a citizen does when a citizen is accused of a crime, right?

So if you murder somebody in the line of duty as a peace officer in California, if I'm not mistaken, the law allows you 10 days before you were obligated to give a statement to internal investigators.

I mean, that's a lot of time, right, to consult with your lawyers, to consult with your therapist, whatever.

Maybe find out what the evidence shows, you know, like determine if there's videos, if there's not videos and comport your statement to that.

There's nobody's being is throwing you into a room for six hours and berating you and and doing that kind of stuff.

There's all kinds of stuff shielding their disciplinary records.

There's all kinds of informal institutional pressure, reducing the public's, you know, incentive to report them for misconduct.

Not to mention, I mean, all kinds of like, you know, just naked intimidation by police officers to on members of the public when they try to make complaints.

All kinds of stuff, right?

Like, you know, that we've seen over and over again over decades of kind of this institution that they can kind of do no wrong.

Is it similar of in Snobomish County when it comes to, you know, kind of going after police officers for misconduct?

It's somewhat we and in Washington, we just passed a new police accountability law a couple of years ago that's supposed to be taking, you know, taking the forefront and supposed to now hold be make it more easy to hold officers accountable for misconduct.

And it doesn't seem like that's really taken hold yet just because of it's got to be implemented by the people on the ground.

And so these three officers were fired, right?

Obviously got some due process.

There was hearings.

They had opportunity to defend themselves, but they were fired after that process, correct?

They, they, there were significant internal investigations.

All these things occurred in 2017 or 2018.

And then they weren't fired until, uh, 2019.

Gotcha.

So the, there was, there was investigations that lasted up to a year that went on and through interview processes and, and of the officers themselves of Fortney as these officer supervisors and other individuals.

Wait.

So this, uh, the current sheriff was those, those three officer supervisors at the time of the misconduct?

That's correct.

Yeah.

He was, um, that, which just leads to one of the conflicts of interest that were, that were raised in these decisions.

Um, the other one being that his response to that charge, uh, eventually in the recall became that he was just responding to grievances filed by the union.

Um, and that under the collective bargaining agreement, he's as the sheriff required to take those grievances and make a determination, relook at everything and decide what needs to happen.

And so by doing that, he decided that he was going to rehire all three of them and give letters of reprimand.

But, and that's, and that's not, and that's nothing he ran on.

He didn't run on reinstating them, right?

Oh, he absolutely did.

Yeah.

That was part of his campaign.

Oh, it was.

Okay.

The firings happened during the race.

Hmm.

Okay.

So he was, he was trying to color it as these were politically motivated firings by the previous sheriff because the previous sheriff was being challenged by, by Fortney.

So we see it.

So now you've told us this, this, the, the, the, the deputies being fired and reinstated, uh, the refusal to enforce governor Inslee's, you know, um, safety orders for the COVID pandemic, anything else that, and then, you know, his kind of fear mongering related to, uh, and terminating or counseling the, the booking restrictions related to the jail.

So these things are all kind of, you know, building momentum.

Are there any other events that, you know, kind of lead you to this recall petition?

Yeah.

Well, so related to the refusing to enforce the, um, stay home, stay healthy proclamation.

He actually incited people to violate the orders.

He went out and, you know, through his public statements, telling people he wasn't going to enforce it, telling people to get back to work.

And then we had direct evidence of multiple businesses opening up one of the barbershop in one of the towns up here opened up.

There was a line around the corner, nobody social distancing, nobody wearing masks.

And then when the barber was asked why he decided to reopen his shop, he told, told the press basically that the sheriff said it was good and that, you know, he wasn't going to get in trouble for it.

So he wanted to get back to normal.

And so he's so inciting that.

And then the fifth charge that we filed was related to a black woman who was stopped by a deputy for jaywalking.

And then when she attempted to leave the scene, the deputy chased her down and tackled her in the street and then arrested her for obstructing and resisting.

Yeah.

The deputy claims that she was, that he had told her that she wasn't free to leave and that she walked off anyway.

Um, she said that she had headphones on and didn't hear what he had said.

Uh, either way, you know, the tackling was unnecessary.

Yeah.

It was definitely excessive use of force.

And then to, to then throw her in jail for 24 hours.

And this COVID charges during COVID.

Yeah.

COVID risk during jails.

And which kind of goes to your larger point, right?

Are we really here?

Can jails, you know, like I was, we kind of talked in the preamble a little bit about, you know, COVID has really exposed a lot of the systemic issues public defenders talk about.

Right.

And it's like, jails are dangerous places, right?

They give bad health care to our clients.

They have bad food, like there's sexual and physical assault by, you know, other people that are incarcerated as well as the people that were working in the jails, especially the officers.

Right.

Like there's been documented cases of it, right?

Mental health, people who are experiencing mental health crises, like are do worse in jail.

People who are, you know, having substance abuse issues do worse in jail.

Right.

So we see all, and then we tend to lock those people up the most, right?

So we see all these things and COVID now is like, oh, and we're also unable to protect people from a deadly pandemic, right?

Yeah.

Which kills people, right?

And so literally we are sentencing people to a high risk of death by placing them inside a facility that is not only dangerous before the pandemic, but is now exacerbated by a deadly disease.

Right.

And so, and a jaywalker, right?

So like now we're saying the excess of forces to tackle a jaywalker is already a violation of the Fourth Amendment.

Isn't there some constitutional or civil right violation by placing a jaywalker into this COVID infested jail or a COVID susceptible environment for 24 hours?

Okay.

So those are, so there are five charges on the petition for recall or five charges on the petition that we filed.

And when you say we filed, let me ask you this.

Is this a public defender's office or is this three attorneys?

Okay.

This is three residents separate from the public defender's office.

Gotcha.

And I do, I have to always make that clear.

It's one of our, that my director always tells us, like, whenever you're doing any type of media thing, just don't say that you're doing it on behalf of our office.

No, but I mean, you guys are, you guys are engaged citizens in the criminal legal system and you guys have identified it.

And are you, are you involved in some sort of outside organization outside of the public defender's office?

Or you just decided, you know, I mean, how did you, you and these other lawyers sync up together and decide to do this?

Yeah.

So when, when the, like, sheriff's declaration came out that he wasn't going to enforce the law anymore, we, I was, there was just a call for this recall.

It kind of just spontaneously came about and I was approached by a couple of people who asked if I wanted to get involved with it and asked if I wanted to kind of be a leader in the effort.

And, you know, so I obviously said yes.

And then after a little while in it, just, I kind of just.

Is there something about you that made people come to you?

Like, why did, why are they coming to Colin McMahon?

Do you want to give your full name, by the way?

That's fine.

Yeah.

I'm sure, I'm sure it's on the legal fleeting.

Yeah, exactly.

And in the, and in the articles.

And in the newspaper articles.

Yeah.

So why did, why, I mean, why, let's, let's, let's toot your own horn, man.

Why did they come, why did they come after you?

Sure.

Well, I, I actually ran for an appointment to the county council, which is our like county legislative body.

Oh, okay.

Earlier this year, back in January, February.

And, you know, I was running on a law and justice platform, right?

That, because we have our like law and justice committee that the county council has a member on.

It's a five person council.

And none of the members of the current council have any type of legal background, a law degree or anything else.

Yet the general fund for Snohomish County, 75% of it goes to quote unquote law and justice,

which the vast majority of that goes to the sheriff.

The sheriff, okay.

And so my, I, I entered that and went in, into that race with this being my focus, right?

Being focused on criminal reform, mental health reform, addiction reform, services, housing, those kind of things.

And like rerouting all the, rerouting the sources to, to other needs and services other than the police or the sheriff.

Yeah.

Yeah.

You know, focusing on evidence, evidence, evidence-based, evidence-based solutions to the problems that continue to plague our civil society.

I didn't want to say the buzzword defund the police, but you were, you were, you were doing that before it became even popular.

That's what you're trying to say.

The, the, the goals were similar, I suppose.

Yeah.

Yeah.

You know, yeah.

So that was, I ran that campaign back in January, February, came short of it, obviously.

Well, not obviously, but came short of it.

What's up, my A and Gers.

Just want to say thanks for the downloads, likes, shares, and just outright excitement for what we do here at Another Not Guilty.

Also, to my fellow defenders out there that have a nice NG to share with us and want to be a guest on the pod, or anyone that has a Not Guilty story to tell, just want to say we would love to hear from you and have you on as a guest.

So please visit our website at anothernotguiltypod.com and fill out the submission form.

Thank you.

Okay.

So they, they approach you, you're kind of this, uh, you know, public figure, public, we like to call them public, public defenders.

Uh, uh, and so, uh, a group of lawyers, you guys, and so you guys get together and you guys put together some form of organization or you guys decided to, you know, use your legal skills to, um, you know, go forward with this recall.

Yeah, so I kind of decided that I would couple my legal skills as well as my organizational and like, I guess, political skills.

And we created a political action committee, um, put together subcommittees and everything like that.

So we have a legal subcommittee.

It was not hard to recruit people to get involved with this effort, um, because of how public it had been.

And so we get, you know, we have a bunch of attorneys from all kinds of different, um, practice, like practice areas, even working on it.

So, you know, you have, you have me, who's a criminal public defender.

You have a private criminal defense attorney.

You have a private slash public defense dependency attorney.

And then you have, we have an immigration attorney.

Those are the four petitioners on that like signed petitioners on the, on the recall petition itself.

But we also have, I feel like it's like something like Marvel, like some like Marvel, Marvel superhero, like Avengers, Avengers, the legal Avengers, the legal Avengers, you know, people all standing up for the, when you got, we need a housing guy.

Who's the house?

Who's the housing guy?

Um, that's funny too, because, you know, 40s tried to paint us as these, um, you know, just public defender defund the police.

That's, that's, this is all they want to do.

They're just anti-cop, you know, um, just because I'd said something they didn't like.

Now they want to kick me out of office type of people.

But he's also described this as organized, relentless, and ruthless, which I kind of, I kind of took that one, embrace that one.

I, that's like a tattoo if I ever heard of one right there.

Like just across the chest, you know, organized, relentless, and ruthless.

Yeah, I don't know if he meant it as an insult, but it certainly didn't come across that way.

Yeah, you're like, hey, that's great, man.

It's like a judge asking to put you in contempt.

You're like, we, we, that's good.

That's great, man.

Thank you.

Um, okay, so, uh, so you guys get together, and then you guys kind of draft these, uh, these, these, like, I guess, you know, I guess causes of action or basis for, um, recall?

Yeah, you know, and it took a little while, obviously, just because we were all still doing our day jobs.

And this was all happening after hours, on weekends, things like that.

And the initial petition, the way it works, recalls are weird.

I mean, I always say we all had to just learn exactly everything about it, uh, from scratch, basically.

But the way it works is that you, you file a recall with the county auditor's office, which is like the secretary of state, but for the county.

And then if that person approves it, and all you have to do to get approved by the auditor is just have it filed by people who are registered voters, then they send it to the prosecutor's office.

The prosecutor's office files it in the court and then serves it on the, in this case, the sheriff.

Uh, and then there's a date set for a hearing.

Wow.

Well, he gets a chance to respond, and then there's a date set for a hearing.

So the same criminal prosecutor that prosecutes people for like, you know, whatever crime, burglary or robbery, or is this, gets this petition from any registered voter, is that just for the sheriff or is that any elected official in the county?

Any elected official.

So when we had the hearing, the hearing was all over Zoom, and there was a member of the prosecutor's office there, and she was just there to observe.

Observe, got it.

So there's a, there's a Zoom hearing.

Okay, tell us about what's going on here.

Zoom hearing, is it, is it publicized?

Is it on TV?

Is it, is there a lot of media following this or what's going on?

Yeah, there's a decent amount of media.

It's, it was, we kind of were behind the eight ball because of how much effort we put into writing the petition in the first place and getting all the charges together, getting public disclosure responses and everything like that.

We were actually the second petition for recall of the sheriff that was filed.

Okay.

So the day we filed it, the, the hearing for the other petition was occurring.

And that one, we decided to file our own because that one only moved forward on the, the one charge of his refusing to enforce the COVID law.

Oh, okay.

Got it.

So this is why it's important to have lawyers sometimes, right?

Like to kind of be like, let's, let's get every cognizable basis to.

Colin, as, as a public defender and in the criminal legal system, you know, the importance of stacking charges.

You know how that works.

Cause they're going to keep peeling them away.

Yeah.

Right.

You know, I have everything we can go that's got enough evidence.

Yeah.

Yeah.

Let's go with it.

Right.

Can it get past preload?

Can it get past preload?

Right.

Um, uh, okay.

So the hearing, like I said, the hearing was, was decently publicized.

It was on zoom.

They spend, uh, they have a setup here where you, their zoom hearings then get put on the, and streamed on YouTube.

Okay.

And so you, anybody can go on and watch them on YouTube and the others.

So there's a ton of people watching that way.

And the zoom hearing was, you know, it was interesting.

All of the judges that are in Snohomish County recused themselves from the case.

So we ended up getting a judge from San Juan Island County.

Killer Whale, San Juan Island County.

That would be the place.

Nice.

Whale watching tours.

Gotcha.

Gotcha.

Okay.

So the case is assigned to a judge.

Like the, what role does the judge play then?

Whether or not the petition is granted or.

Yeah.

So the court, the court, well, this was actually a point of confusion, I think, for Fortney's attorney throughout the entire process, even through the Supreme Court.

Sheriff, Sheriff Fortney, huh?

Yes.

Yeah.

The role the court plays in this situation is essentially a gatekeeping role.

And we like to analogize it to how a criminal case goes through just because it makes sense in our brains.

Essentially, what we are filing is an initial information, right, with the charges on it.

We, our burden is to show that there is a sufficiency of the evidence.

Essentially, we just need to make a prima facie case for factual and legal sufficiency of each charge.

Fortney's attorney continued throughout the entire process to try to prove that the charges that we were alleging were false.

And the court kept trying to explain to him that that's not the purview of this court, that they're just determining whether there's sufficient evidence.

Because what happens is now we're in the signature gathering phase, and then next will be when it's on a ballot.

Once it's on a ballot, that's when the quote-unquote jury, which is the voter, gets to determine whether these charges are true or false.

Oh, the voter.

Oh, okay.

So this is basically just a process to basically have a new election on whether the sheriff should stay, right?

And so the thing is, whether or not the voters believe these charges are true, they'll vote accordingly.

But the court is really just there to make sure this is not like we say at prelim, right?

Like this is a total fabrication of evidence, right?

Right.

Okay.

You're not just harassing Sheriff Fortney, you know, because then anybody could just recall and put, you know, people on, have voters vote for whatever.

So this is like there's a legitimate reason here that we're going to the voters and asking them to vote on whether or not he should be our sheriff or, I mean.

So is the statute like an outline, like reason, like kind of a basis?

Or is it just like, or is it, you know, you're kind of just kind of saying that these are violations of the oath of office and then you draw that connection?

Or is the statute more clear than that?

Well, the statute's not super clear, but it's got a little more to it than that.

And there's three bases for a recall within the statute.

The first one is if the elected official has committed acts of misfeasance and then if they've committed acts of malfeasance or if they violated their oath of office.

Those are all very vague.

Yeah, it's super vague and they're really malleable.

So we try to apply each one of those standards to each charge as much as we could.

Got it. Okay. And you guys, so then you guys have this hearing and then Sonohomish County.

Okay. You've, you've said that. How many judges sit in Sonohomish County?

Fourteen Superior Court judges.

And fourteen judges recused themselves.

Right.

Got it.

And they'd all done so in the previous petition as well.

Oh, the one that the other group had filed.

Right. And that one had gotten a judge from down south where Vancouver, Washington is, near Portland.

And once we filed ours, everyone recused themselves here.

And then Fortney's attorney filed a notice of disqualification against the attorney, the judge who had approved the previous recall.

So we got a different.

Got a different judge.

And so tell us a little, just, I mean, just for my own curiosity, San Juan County, is it smaller, obviously, than Sonohomish?

Much smaller.

I think there were only two or three, uh, Superior Court judges.

Okay.

Not any level judges up there.

And then it goes to one of those judges.

Yep.

Got it.

Okay.

She agreed to take the case.

Can you tell, uh, like, during these process, uh, these processes to, uh, you know, the Zoom hearings and stuff like that, are you, like, making arguments to particular entities?

And, like, are you in court?

Are you, I guess you're home, right?

You're over Zoom.

Yeah, I was in my apartment.

In your apartment, and, like, who are you making arguments to?

Uh, directly to the judge.

Um, because what, what's at issue at this, this level is whether there's a prima facie basis for each of the charges.

And so we're arguing in favor of each charge he's arguing against, and then.

Can you give us a little flavor of what you said over, during your arguments?

Yeah.

Yeah, well, so during my arguments, I think my main point with regard to the first couple charges was that the chief law enforcement officer of a county is charged with,

determining, or with enforcing the law, not determining whether the law is constitutional.

And you can't come out and just say you're not going to enforce the law because that's a lot like the chief of police coming out and putting up a sign behind a speed limit sign saying,

we're not going to enforce the law, because you only know, the only outcome of that is that no one's going to follow the speed limit.

And so that was kind of dovetailing the incitement charge into the argument regarding his refusing to enforce the law,

especially as a law and law and justice or law and order shares.

And then we had some arguments related to the jail.

That was, so we had five charges.

We only got through with four.

The charge related to the jail and how the jail had been, I guess, even implementing their own policies related to COVID wasn't accepted by the court because,

I think mostly because it was not, not something that we could get, we couldn't get to it under the law, basically.

Under those three bases, it was hard to connect to Othell office, Ms. Feeson's office.

I was, I think I got pretty confident that we were going to win on that charge because I was reading,

there's a statute in Washington that talks about how it is the duty of the sheriff to protect the inmates of the jail.

And we were making an argument.

There was, there were positive cases of COVID in the jail.

They, they put that, there was an individual who tested positive.

They put him in a courtroom with other attorneys, with other inmates, with jail staff, and didn't tell anyone that he was, that he had tested positive.

They gave him a mask, but that was it.

The attorneys weren't wearing masks at that point.

We just had that, we just had that down here this week.

Yeah, we just had that in our, in the courthouse that me and David work in.

Yeah.

Just like they brought, they brought somebody in.

And it's kind of crazy that you say that because, I mean, 13,000, maybe 900.

A little bit shy of 14,000 people have tested positive for COVID in our jail system since March of 2020, right?

That's, that's, that's the kind of, that's a little bit less than the average daily population of the pre-COVID jail population that we have.

We have about 17,000 people in jail on a daily basis.

And the first time in 30 years that LA County had, you know, you know, you talked about going down to 300, you know, we, that we went to 100% jail capacity, which is something like 11,500.

And it's like, and that's what was kind of crazy.

We were like, listen, there is, there's a massive pandemic here.

People's lives are in danger.

Thousands of people are getting this virus, you know, and the sheriff, right, is charged, you know, with protecting the health and welfare of the, that's why we give, you know, healthcare to people in jail.

That's why we give them food in jail, right?

Like, like, right, like we give them, and to protect them from deadly disease, right?

And it's just, and it's crazy because the statute in California is like from like 18, like whenever we became a state, like 1850 something.

And it's like the sheriff shall, you know, from pandemics, you know, bitch, like all these like biblical words, right?

Like you're like, you think about it, you know, and that's when it was, right?

When people, the black plague, California, right?

Like these things.

And, you know, we haven't really thought about it, I think, in modern times since probably maybe the Spanish flu, but it is nuts.

Yeah, we take it for granted.

We take it for granted that, you know, it's in there.

But I think for our clients and the communities that we serve, right, I mean, it kind of, like, it really highlights that kind of fear that they have just whenever any of their family members go to jail.

What is going to happen to this person I love or this person from my family that is in this facility?

Are they going to be forever irreparably harmed?

You know, that's what their fear is all the time.

And COVID just, you know, just adds on top of that.

And I think it's hard for us, I mean, at least for me as a public defender, to say, if you're not keeping people safe from this disease, how are you not violating your oath of office or your duty?

That's misfeasance, right?

Like, you have an affirmative obligation to protect those people.

That's exactly right.

I think the issue that we had with the charge was just that we didn't have any empirical evidence of that, you know, of a spread that was related to it, right?

Got you.

And because of that, you know, we were...

A little bit.

Because that was where the judge actually focused most of her questions for me when I was making the arguments.

And I did my best to just highlight the statute and highlight the situation and what was going on.

There weren't social...

There's no social distancing.

We filed a bunch of declarations from attorneys and inmates who were telling us that there's no social distancing going on.

People aren't wearing masks.

Obviously, they're bringing people in who have COVID without telling anyone.

But that's always been the problem, I think, with, like, jail, less challenging jail conditions, right?

Because the people who control the information are the sheriffs, right?

And so there's, like, an incentive almost to keep us in the dark about what goes on so that we can make a lot of these empirical cases.

You know, I mean, when we're seeking declarations here in LA County, you know, it's hard.

It's even hard because people fear retaliation from the sheriffs, right?

And so...

Well, this one pissed me off the most just because the jail just straight up lied about this whole thing when they were confronted.

And they didn't tell anyone.

They were asked, did you bring this person in or was he isolated?

And the jail's response was he was isolated for 24 hours until we got the COVID test back.

And then he was put into, you know, medical isolation, blah, blah, blah.

And I was like, well, that's patently false.

We know that he was in the courtroom.

I have an audio recording of the hearing where he was there.

So, you know, and then once they were pressed on it, they were like, oh, no, yeah, that happened.

But we definitely know that we didn't infect anybody else.

Oh, yeah, that's right.

It's in the minute order.

Defendant present.

Yeah.

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Which kind of goes to, like, what we're seeing right now is that the sheriff here is, like, kind of we were just engaged in these really intense factual, like, debates.

Like, they're saying, hey, there's this video.

Like, we have a reporter that was arrested recently here in L.A. County.

And she has, there's a video of her arrest, and the sheriff is basically saying, don't believe the video.

Don't believe the evidence.

Believe what we're saying.

Believe our tweets and our narrative.

And, you know, it's kind of interesting.

As public defenders, right, we have been saying, we bring in alarms, right?

Like, we talk about test-aligned all the time, you know, and we say, hey, listen, all these white lies go on every day with these sheriffs, you know?

And we're kind of going on.

And now when it comes to matters of life and death or public safety, you know, we are, we've engendered this culture.

We've allowed this culture to grow to a degree in which there's very little accountability for those white lies, right?

And so.

Yeah, and you have, you know, you have sheriffs all over the place holding the community hostage now.

Because, you know, it's like, don't, listen, we can't have any changes.

We're not going to change the budgets.

We need all the money that we're getting now.

Because look at how bad crime is.

We're doing such a good job at that now.

If you take our money away, we're not going to be able to do anything about it.

Yeah.

And then.

Possibly doing some of these, you know, kind of strikes or informal strikes, not arresting people.

Right.

And then, and crime does potentially go up.

But then again, I guess that's the other issue we all, we say is information flow is important.

They control a lot of the crime stats.

Right.

And so, right.

And so even then, even with them controlling the crime stats, somehow crime is still at the historical.

Yeah, it's still not going up.

Right.

It's still not going up.

Right.

So we're still, you know, I think in a good place.

But okay.

So you, you, you went on four or five and then, then what happens?

The, the sheriff appeals.

Yeah.

Well, before that we had a, we had an argument over how the, what, what the language that was going to be on the ballot and what that was actually going to say.

And it was funny because the biggest sticking point to the sheriff's attorney was that we wanted the, the proposed language that we had for that fifth charge were related to the woman who was tackled for jaywalking.

Was that we used the descriptors that the sheriff, the deputy tackled a black woman.

And he decided he was, his whole thing was that those words, black and woman are overly prejudicial and you can't use those.

But that was, so that was kind of funny.

And it's just.

They're inflammatory.

Yeah.

Yeah.

He literally used, used that word.

He was like, these are inflammatory.

I was like, okay, well, nobody's buying that.

So you're making these arguments via zoom to a judge and four out of the five hit.

So the judge says, I grants the petition right then during the hearing.

Uh, we had two hearings.

So she, she said that the, she, she granted everything at the first one or the, she granted four out of five at the first one.

So we're good to go on those.

And then that means that we have the way the recalls work, you go to the court and then once the court approves it, you wait a little while.

Um, then once the, then you have 180 day to collect signatures.

We have, so we're in, we're in our right now, our 180 day period to collect signatures.

To see if it makes the ballot.

Right.

Right.

So then we have to get just under 45,000 signatures in that timeframe in order to get it onto a ballot.

So the judge granted the petition says that you can now collect signatures to get this on the ballot to recall the sheriff and you need to get 40,000 signatures.

When did this happen?

Like last week, two weeks ago?

Well, that was, so that was in July because then he's got 15 days.

We can't start collecting signatures until the, basically the period for him to be able to appeal.

So he's got 15 days to appeal.

He hires a new attorney who jumps on.

He's like, you're fired.

He kept the other guy on as well.

Oh, okay.

Got it.

We need more attorneys.

Yeah, pretty much.

Um, so he hires this other attorney.

They file a notice of appeal and then the court, the Supreme courts, and it's direct to the Supreme Court.

Yeah.

There's no appellate issue.

Okay.

Um, so the Supreme Court, Supreme Court says, all right, uh, here's the schedule, you know, and it's just their regular schedule under the appellate rule.

So we filed a motion to accelerate review and we filed, we wanted him to have his brief, his opening brief filed in like two weeks and we were going to do ours in a week.

So we filed this motion and, you know, the, the schedule that we requested was absurdly short, but we figured they'll come down somewhere in the middle.

His, his, his attorney was objecting to shortening the schedule at all.

And, uh, we got a ruling from the court saying that the motion was granted in part.

They sped everything up, gave him, I don't know, um, like a month or maybe five weeks to write his opening brief.

So we got three weeks to write a response and then there was a week for him to write a reply.

And then they also indicated that they were going to consider the case in an en banc conference on September 10th and that there would be no oral argument.

So then, uh, so what's the current situation like now then you're, are you out collecting signatures?

Now we're out collecting signatures.

We got the decision.

So we got the decision on the 10th.

I wasn't sure when we were going to get it and they just kind of issued a one page order saying, here you go.

They approved three out of the four charges that they got.

So they did not approve the charge related to the black woman and the failure to investigate the excessive force claim, but they did approve.

Well, he conceded 40 conceded the first charge about, um, refusing to enforce the law because obviously he didn't, he'd already been found to have that petition move forward on the other recall.

And he didn't appeal that one.

So he just conceded that that one was going to move forward.

Uh, but we won the incitement charge and we won on the rehiring charge.

So, so the Supreme court puts out this one page order and then you guys are now, now you guys are off the, off the road running with collecting signatures.

Exactly.

We're, you know, we've, we're, we're collecting signatures and we're trying to get it to collect as many donations as possible because we have to get in Washington.

They also don't allow electronic signatures.

They have to be wet, like the wet signatures.

Yeah.

Yeah.

They have to be wet signatures.

At least that's the guidance that we've gotten from the secretary of state.

The nice thing is that we are allowed to use regular size paper because the statute says you have to use 11 by 14 paper, which is just ridiculous.

And obviously people aren't going to be able to print that at home with the pandemic.

How old is the statute?

Uh, that statute, it's gotta be, I'm not, I don't know.

By 14.

30 years, 30 years old or something.

Yeah.

It's like, you must use legal size paper, you know, like the worst, the worst size ever.

Okay.

Like abolish eight and a half by 14 paper guys.

Um, so you guys are on your way.

I mean, I, I think, I mean, I'm just very fundamentally impressed by this.

You know, like we talk a lot about, you know, I know you, this wasn't an official action by the public defender's office, but you know, it is, it is about like how individual lawyers, I think involved in the criminal legal system, specifically public defenders are, you know, really taking more visible leadership roles in the community.

Um, when it comes to police accountability, when it comes to, um, budgetary allocation, um, and I think it's pretty impressive because, you know, we're talking about how our voice is finally being, you know, people are listening to what we have to say and we're not just being labeled as defenders or apologists, um, of, of, of bad behavior.

We really are being, um, you know, welcome to a table, I think slowly in, in a lot of jurisdictions.

I just want to, I mean, we can edit this part out.

I want to make sure though, when we, when we air this episode, if you have anybody you want us to tag or any hashtags you think are important for us to, when we put out the episode on social media, um, because you know, we definitely want to help amplify the signature collection or donations that you guys need because.

Yeah, that'd be awesome.

Um, you know, we have, it's a, the hashtag is just hashtag recall Fortney and, and then the, uh, our website is recallfortney.com.

Okay.

Keep it as simple as possible.

You can tag me individually as well.

Cause I, I'm the chair of the recall action committee also.

So, um, it's an interesting ending.

How do we end this then?

Um, well, once you, once you end it for us, Colin, why don't you tell us a little bit about, you know, how, are you guys optimistic about the, the recall?

Do you, what was that, what do you think that means for Snohomish County?

Well, the recall, what, well, our ultimate goal here with the recall is not only to just get Fortney out of office, but to get Snohomish County back on track as far as holding every person accountable in every step, every level of government.

And by doing this recall effort, we're shining a light on the fact that you can't just come in as a chief law enforcement officer and run the show.

However, you want to run the show, you've got to follow the law and you've got to hold, you've got to be held accountable and you've got to hold your deputies accountable.

Colin, are you saying that there's going to be a new sheriff in town?

That is, that is the goal.

You know, March 10th is our, March 10th, 2021 is our signature gathering deadline.

And then we're hoping to have a special election ballot in, uh, by the end of April.

Okay.

So this will be a loan, but alone on the ballot.

Okay.

This recall petition just kind of reminds me of what we do as public defenders kind of daily, right?

We're, we're constantly holding government officials accountable, you know, in that courtroom, like you just said, um, whether it's through cross examination or filing motions, um, to make sure that, you know, the government is, is doing everything by the book.

Um, and that, you know, we expose misconduct and, um, fight fear mongering, fight, you know, and really, really discuss facts, you know, and it's, it's interesting.

It's, it's, you know, it's very, it's very awesome that you guys are, um, taking that to a more systemic level, you know, and saying that, you know, rather than, I think in the past, a lot of, of the older public defenders that I've dealt with in the past have kind of said that, you know, they're really impressed with the fact that we're, we're not just surrendering on the larger systemic battles.

You know, like in the seventies and eighties, there was a lot of, you know, dogma and, and, and rhetoric about, you know, just tough on crime and, and, and, and the dogma was really dominated by one side.

And then we're, I think as we get more organized and, and kind of make sure our viewpoints are on podcasts and the news and in these other forums, you know, I really think we're having a better impact at making sure the community understands what we do.

And, and what our client's perspective is, um, every day, you know, so, uh, I applaud you for that effort.

It's a, it's a, it's really awesome.

So Colin, how long have you been a public defender for?

Uh, just over five years.

And then do you, are you a fan of the podcast?

Like why did you contact another not guilty?

Yeah.

I love the podcast.

I listened to a bunch of the episodes, um, especially those episodes in June about police accountability and things like that.

That not only gave me, not that I really needed it, but gave me a little bit more motivation for, for work, running the recall, you know, it's, it's been a ton of work, but listening to those episodes and knowing that we would be able to make a difference by continuing to push this effort, um, helped, helped kind of motivate me along.

And, and, uh, so I contacted the podcast cause I thought this would be a little bit of a, like I said, a little bit of a change of pace episode, but also, uh, something, something maybe that will motivate other public defenders or other people to, to take unorthodox steps to, to challenge, to challenge authority.

Well, you know, we fight, I mean, every day we fight the battles, but sometimes to win the war, you gotta go outside of the courthouse.

So.

Colin, at any time during this, have you ever, you know, questioned or are been concerned about your safety?

Uh, a little bit.

Yeah.

Um, and you don't, you, we don't talk about this if you don't want to.

No, it's fine.

It's nothing like there haven't been any like direct, I haven't, I haven't received any direct threats.

Um, I don't know that, and I don't know if anyone has received a direct threat, though.

We did see some posts that were talking about, um, you know, figuring out where, where each of us petitioners lived, burning down our homes, things like that.

Um, so, you know, that's, that's, is, is obviously concerning, but I think it's also just kind of, you know, empty threats behind the keyboard.

Got you, got you.

All right.

I just, you know, I think it's, I think a lot of people are, you know, concerned about taking action, you know, oftentimes, especially with law enforcement and because of this.

And we've seen that, you know, we see that with, with people, a lot of people don't want to donate to, to the campaign because if you donate more than $25, then your name becomes your, your, your, all your public, your, your contact information becomes public record that can be attained by anybody.

However, that is not the case for people who signed the petition, people who signed the petition, their names are kept confidential unless the court orders them to be released for some reason.

For a good cause probably, right?

Yeah.

Got it.

Yeah.

All right, man.

Well, really appreciate you coming on the pod, you know?

Yeah.

Yeah.

Thanks for having me.

It's been great talking to you guys.

I really appreciate it.

Nice to meet you, Colin.

Thanks.

Keep up the good fight, man.

Thanks for tuning in to this week's episode of Another Not Guilty.

Shout out to Daniel Mark, original A&G theme music composer, and Mike Grimm for the remix.

And guess what?

We'll be back in two weeks with Another Not Guilty, straight from the trenches.

We'll be back in two weeks with Another Not Guilty, straight from the trenches.