Defendants got off the hook if they donated to charity

KENNEWICK — Travis Lockie already had two drunken-driving convictions when he was arrested for the same offense earlier this year. He might have faced months in jail.

Instead, the prosecutor cut him an unusual deal: A $1,400 donation to a local charity got him treated like a first-time drunken-driving offender. Lockie paid, and left court a free man.

But the next day, Lockie, a 32-year-old construction worker, was arrested for driving drunk again. He asked his new lawyer to get him the same deal as last time.

Instead, the lawyer, Chris Herion, filed court documents telling a judge of the odd arrangement — and the fact that Lockie's donation never reached the charity.

Herion, in effect, had blown the whistle on an open secret in Benton County District Court. For years, defendants in misdemeanor cases have gotten their cases dismissed or charges reduced in exchange for contributing to a charity selected by the prosecutor.

The practice of taking donations as part of plea deals is not isolated to Kennewick. But never before, lawyers say, has there been so much money and so many questionable deals as in Benton County District Court.

The FBI is investigating allegations that thousands of dollars intended for a Tri-Cities charity are missing. The Washington State Bar Association is looking into potential ethical violations against two attorneys Lockie named.

The story playing out here, on the windswept edge of the Hanford nuclear reservation, may soon change how much discretion prosecutors around the state have in requiring fines above what the law allows.

The bar association has never issued an opinion on the ethics of donations in plea deals but is expected to as part of its investigation.

John Strait, a Seattle University law professor, said a lack of such an advisory opened the door for a practice that is "unethical, bordering on criminal."

He doesn't blame defendants, who gladly pay extra to avoid embarrassment, or defense lawyers who try to get the best deal for clients.

But prosecutors, Strait said, are "coercing a donation to a charity of their choosing. This is supposed to be a society where you don't measure justice by how much money you have."

Donations, at the request of prosecutors, have been going to an after-school program for troubled teens called Home Base since 1992. Home Base has received more than $40,000 from 131 criminal cases since January 2005, according to Kennewick city records.

Kennewick's city attorney, a goateed John Ziobro, defends donations as a way to give people with "spotless, or near-spotless records" a break after a mistake for low-level crimes or speeding tickets.

Many believe the program has spun out of control, with theft, assault and drunken-driving-related cases dismissed or significantly reduced after donations were made. One man with 16 prior convictions — for such crimes as theft, harassment and assault — paid $1,400 to get his eighth charge for driving with a suspended license reduced.

For such lapses, Ziobro points to the two lawyers Lockie named: assistant city attorney Tyler Morris and public defender Jeffrey Finney.

Morris has been suspended pending an investigation, and Finney, a private attorney, recently gave up his public-defense contract. Both lawyers declined to comment.

"I don't think it was ever intended to be used as frequently as Jeff and Tyler used it," said Ziobro.

Those two attorneys appear to have handled all the cases involving missing donations. Somewhere between Finney's office, where defendants were given a receipt for their donation, and Morris' office, where the money was to be deposited, envelopes of cash disappeared, according to defendants whose contributions are missing.

The loss of the money was discovered when defendants showed donation receipts stamped from Finney's office, but the money didn't show up in city records of contributions to Home Base.

The Tri-City Herald, which broke the story about the donations, recently estimated that about $18,000 from eight cases is missing, including one $5,000 donation for a drunken-driving dismissal.

The FBI has asked Finney for his records, part of a probe going on at least since February. Asked where the money may have gone, Ziobro shrugged. "I've been dealt a crap sandwich," he said.

The cattle-call court

An average of 21 misdemeanor cases are filed each day in Benton County District Court, a cattle call that leaves little time for contemplative justice. The city of Kennewick claims to spend an average of one hour per misdemeanor criminal case.

In the crush of this docket, Morris, 35, one of two assistant city attorneys, and Finney, 49, a well-regarded former prosecutor and Little League umpire, typically handled dozens of cases in common.

In a letter to Benton County commissioners, Finney said donations were common knowledge in the courthouse. So common, in fact, that envelopes stamped with the raised blue city seal of Kennewick were kept in court to make it convenient for defendants, according to the letter.

Finney said he sometimes passed the cash-stuffed envelopes to Morris right in court.

"It may well be true that someone other than Home Base benefited unethically or illegally from these donations," wrote Finney's lawyer, Patrick Sheldon of Seattle. "It was not Mr. Finney."

Benton County District Court Judge Holly Hollenbeck oversaw at least four dozen of the cases involving donations but said he had no idea it was occurring.

Such donations appear to violate a 2004 opinion by the state Judicial Ethics Advisory Commission that banned charging criminal defendants extra fees lest "the public confidence in the court system is undermined."

Hollenbeck said his docket is too busy to ask many questions, and he trusted Morris and Finney, with whom Hollenbeck used to share office space.

"It appears to be so bad," said Hollenbeck. "It appears that maybe people were buying their way out of problems, and that offends me. One should not avoid the criminal-justice system merely because they can afford to do so, no matter how well meaning the program."

Possible refund

Two days after Thanksgiving 2004, a cop pulled over Jennifer Flores after watching her car slam into a highway median. The officer found a marijuana pipe in her purse and vomit on her sleeve. Her blood-alcohol level was more than twice the legal limit.

She got a deferred prosecution, which required her to get counseling, avoid similar violations for five years and install an alcohol sensor on her car ignition.

Things were going well until last October, when a police officer pulled Flores over for speeding and saw that she did not have the ignition lock.

At the suggestion of a family friend, she hired Finney.

Stakes were high. A conviction meant loss of the deferred prosecution, jail time and suspension of her license. In January, Finney said Morris offered a deal: a $2,000 donation in exchange for a dismissal.

"I bawled all day," said Flores, 22. "It was an absurd amount of money, but I figured they had me and I had to do what they say."

She worked double shifts as a waitress at the Kennewick Applebee's and borrowed from a life-insurance policy her mother, who has terminal breast cancer, had taken out.

She came up with the money, and her case was dismissed in February. There is no mention in her court file of a donation. (The donations are seldom mentioned in any court records.)

But last month, Flores learned she may lose her deferment anyway. She has a hearing today to determine if her arrest qualifies as a violation of her sentence.

Her attorney is Herion, who represented Lockie. He said he knew about the donation program but never participated, even if it could have gotten clients a better deal.

"I don't equate zealous representation of my client with bribery," said Herion, who believes his client should get a refund of the $2,000 if she loses her deferment.

Ziobro, the Kennewick city attorney, does not disagree. "Maybe she should get her money back," he said.

"They're losing money"

News of the Kennewick donations has set off an ethics discussion for prosecutors around the state.

Russ Hauge, the Kitsap County prosecutor, sees a fine line between buying a plea deal and making defendants pay for a crime. He routinely gets $100 donations to Mothers Against Drunk Drivers in drunken-driving plea deals, in addition to requiring alcohol treatment and other penalties.

"If it were not part of a package, then we would be open to criticism of buying a deal," he said.

A spokeswoman for Seattle City Attorney Tom Carr said he offers no such deals.

Nor are they offered in Tacoma, said Jean Hayes, head of the city's criminal prosecution unit.

"I wouldn't even think about it. I don't think it takes very many steps in your thinking process to say that's not the proper path," said Hayes.

But Ray Hui, the Richland city prosecutor, thinks Tacoma is missing out on a lucrative income source for local police. His city has taken in $178,000 in the past 26 months through donations in drunken-driving cases.

Unlike Kennewick, Richland merely downgrades drunken-driving charges to negligent driving after a donation, and all donations have been accounted for.

"If there are jurisdictions out there not doing it, they're losing money," said Hui.

Hui says there is an absence of clear direction to officials on this issue. "There's no statute that says you can offer a donation for a crime. There's no statute that says you can't," Hui said.

Staff researcher Miyoko Wolf contributed to this report.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com