Case Of Dead Highway Worker Raises Questions About System

Sometimes the justice system doesn't respond to suspected drinking and driving until an innocent person is killed.

And sometimes not even then.

Tammy Wulff met her future husband while cheerleading at a high-school wrestling match in Pasco. Mike Malone, a wrestler from a competing school, had Tammy's boyfriend in a half nelson when his eyes glimpsed hers. Tammy secretly began cheering for the opposition, and she and Mike were a team after that.

They were married a year out of high school, and Mike went to work for the state Department of Transportation as a technical engineer. Both had alcoholism in their families, but Mike, himself an early-stage alcoholic, decided to break the pattern. Four years ago, he took his last drink. He didn't want alcohol ruining his marriage.

The couple prospered and bought a new house in Kirkland. Neighbors nicknamed Mike "Mr. Softball" for his love of the sport.

Tammy's only sadness was that she could not bear children. This spring, she had a hysterectomy, and on June 3, two nights after Tammy's surgery, Mike stopped by the hospital on his way to work. They talked about adopting a baby, and Tammy drifted off to sleep. Everything was going to be OK.

A few hours later, Mike was dead.

Kyujung Jo, 41, is married, the father of two. He keeps books for a convenience store his wife owns in Mountlake Terrace. His family emigrated to the United States from South Korea three years ago. He has difficulty adjusting to American culture and language, his wife said.

According to police and prosecutors' reports, at 1:15 a.m. Jo was weaving his Acura Legend northbound on Interstate 5 just south of downtown Seattle. Workers had closed two lanes for night repairs and set up bright orange cones, barrels and arrow lights. Mike Malone, wearing his bright orange reflective vest, was inside those lanes, examining the road.

Jo's car struck orange.

Mike was thrown up and over the Acura's roof. Amid a shower of sparks, the car swerved to the right lane and stopped.

Jo got out and walked north on the freeway. One highway worker ran after him, threatening violence if Jo didn't return to his car.

Jo's blood-alcohol level measured .16, above the legal limit of .10.

After pleading not guilty to vehicular homicide in King County Superior Court, Jo left jail on bail.

A glance at Jo's driving record might indicate what happened was an isolated incident, a tragic accident. After all, Jo had never been convicted of drinking and driving before. But closer inspection reveals a pattern that many say makes Washington's drunken-driving laws so ineffective.

Jo had been arrested on suspicion of drunken driving in Tukwila in November 1990 after an officer stopped him for speeding. According to police reports, he admitted drinking and failed field sobriety tests. Yet when Jo went to court, his case joined Washington's nearly 6,000 drunken-driving arrests in 1991 reduced to negligent driving, a minor, noncriminal offense with no jail time.

Then last August, Jo was driving after midnight without his headlights on. He was pulled over. The officer smelled liquor on his breath and noted his slurred speech. He blew .16 and .17 on a Breathalyzer.

South Snohomish County District Court reduced his crime to reckless endangerment. Judge Timothy Ryan told Jo that if he was charged or convicted again for any liquor-related offense in the next two years, he could go to jail for up to 90 days.

Charged with any liquor-related offense. Surely, thought Tammy Malone, the death of her husband was far more than that.

She was wrong.

On July 14, Mike's friends, family, and Department of Transportation co-workers took the day off work, packing the South Snohomish County courtroom for Jo's hearing that could have labeled him a drunken driver. They assumed the judge would at least keep Jo off the street until his trial by revoking his license.

But prosecutor Jim Zachor never showed. Zachor said in the 1 1/2 years he's been prosecuting cases here, he has never been notified of, nor has he appeared at, any hearing to revoke a license.

In an interview, Ryan confirmed that prosecutors are frequently not notified of such hearings. But he also said he couldn't have put Jo in jail without Zachor present.

Judge Robert McBeth, secretary of the state District and Municipal Court Judges Association, agrees. However, given the circumstances, McBeth said, he would have hauled everyone back to court the next day, prosecutor included. But Ryan postponed the case more than two months - until Sept. 27. And Jo went home, driver's license intact.

Jo declined to be interviewed. Wendy Jo said she feels for Tammy.

"I want to give her everything I have," she said. She added that she and her two children are victims, too. They have to live with what her husband has been accused of.

Tammy said she felt victimized twice: once by her husband's death, and again by a judicial system that seemed to discount his life.

"It's like my husband's life means nothing. This man was given a slap on the wrist the first time, a slap on the wrist the second time, and then he kills someone - my husband - and still nothing happens."

Next weekend, Tammy will cheer silently for her husband one last time. The DOT's softball tournament is dedicated to Mike Malone.