Lawsuit Creates Catch-22 In Trial Of 1993 Murder -- Defendant's First Lawyer Could Be A Witness

After the state Court of Appeals overturned his murder conviction in May 1997 because his attorney had been ineffective in representing him, Robert Falkner sued the attorney, William Michael Foshaug, for malpractice.

Yesterday, King County Superior Court Judge Michael Fox ruled that because of that lawsuit, the attorney Falkner is suing can be deposed by prosecutors preparing for the retrial, set for Oct. 26.

In order to have a chance at being compensated, Falkner had to file against Foshaug within the three-year statute of limitations, his current attorney, Sean Wickens, told the court.

Fox's ruling means Falkner would have to give up a chance at being compensated for damages in order to ensure that his former attorney doesn't help prosecutors.

"It's Catch-22," Wickens argued.

"I'm saying exactly that," Fox answered. "There are certain lawsuits when you file them there are very grave risks."

Although Fox ruled that Foshaug was no longer bound by the attorney-client privilege of confidentiality, jurors still may never hear him testify because much of what he says could be considered hearsay evidence and inadmissible in the trial.

The importance of Fox's ruling, said Deputy Prosecutor Joe Solseng, is that information from Foshaug can contradict defense witnesses.

In May 1997, the Court of Appeals ruled that had Foshaug done a better job, Falkner - who has been in prison since 1993 - may not have been convicted of slaying his wife, Barbara Falkner.

Falkner's new trial was to have started Aug. 17, but on that day Solseng indicated his intention to include Foshaug as a possible witness. He told the court that Foshaug had told another prosecutor that Falkner's father had allegedly destroyed bloody rags found near the crime scene.

The father, Glenn Falkner, testified at the first trial that he knew nothing of the murder.

According to Robert Falkner's testimony in the first trial, his wife - who had filed for divorce - was too drunk to drive to Puyallup to meet someone for a drug transaction. Falkner said he drove her there and called his father to pick him up.

Her body was found by lot sweepers about 27 hours later. Falkner was arrested within days. In a trial that took jurors only hours to deliberate, he was convicted and sentenced to 16 years in prison.

Falkner, who has maintained his innocence, has been held at the Regional Justice Center in Kent waiting the new trial since June 1997. He may be waiting even longer.

Wickens said he will appeal Fox's decision and that it's possible the trial may again be postponed. In the meantime, the lawsuit, filed in September 1996 against Foshaug also is on hold, awaiting the trial's outcome.