[Hpn] Complaint Alleges Judge Has Pattern Of Violating Rights!

William Charles Tinker wtinker@metrocast.net
Mon, 17 Oct 2005 07:30:51 -0400


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Judge has pattern of violating rights, complaint alleges

By Maureen O'Hagan

Seattle Times staff reporter


       =20






            King County District Court Judge Mary Ann Ottinger, in court =
in Issaquah in 2003
          =20

    =20

She was young and scared and, admittedly, foolish. But to this day, Sara =
Totten can't understand why she was ordered to spend more than a year in =
jail when her only crime was being a minor in possession of alcohol.

The punishment was later deemed out of line by another judge, and Totten =
was freed early.

The root of the problem, that judge wrote, was District Court Judge Mary =
Ann Ottinger, who sent Totten to jail without telling her she had =
certain rights, including the most basic: the right to a free lawyer.

In fact, Ottinger, who has been a district-court judge in King County =
since 1992, routinely violated defendants' rights, according to two =
complaints investigated by the Commission on Judicial Conduct. The =
first, which focused mainly on Totten, was resolved in June 2004 when =
the judge admitted her errors, was censured and promised to change.

The commission now says that Ottinger continued to show a "pattern or =
practice of violating criminal defendants' fundamental and =
constitutionally protected due process rights."

A month after disciplining Ottinger the first time, it began =
investigating new complaints that were strikingly similar to Totten's. =
That resulted in charges filed by the commission in June.

Mary Ann Ottinger


Age: 56

Experience: Admitted to the Washington State Bar in 1973. Trial lawyer =
specializing in medical-negligence law.

Judicial experience:

Appointed to the King County District Court bench in 1992. Has served =
mainly in the Issaquah court.

Ottinger, 56, declined to comment except through her lawyer, David =
Allen, who said the judge may have made occasional technical slip-ups, =
but she follows the Code of Judicial Conduct, which lays out ethical =
standards for judges. The real problem, he argues, is that some local =
governments aren't providing lawyers immediately to defendants in =
district and municipal court, and judges like Ottinger are unfairly =
being held responsible.

Jailed for an MIP

By the time Totten and Ottinger crossed paths, Ottinger had become a =
fixture in the Issaquah courthouse.

Ottinger presided over cases out of Issaquah, Sammamish, Snoqualmie and =
North Bend, among other cities. Government officials there were quite =
attached to her. In fact, when Ottinger was transferred to Redmond in =
2003 in a reorganization of King County's district courts, those city =
governments fought vigorously to get her back.

Even before this, however, the Commission on Judicial Conduct was =
looking at Ottinger. In 2002, she was told of concerns about how she =
advised defendants of their rights. Ottinger said she would change her =
procedures, but the commission soon heard that she hadn't. The =
commission opened an investigation, and Totten's case became the =
centerpiece.

Totten's legal problems began in June 1999, when, at 17, she was caught =
drinking and registered a blood-alcohol level of 0.071 - lower than the =
legal limit for an adult but a crime for someone under 21.

By her first court hearing, in January 2000, she had turned 18. There =
was neither defense lawyer nor prosecutor there.

The hearing was over in minutes. Totten pleaded guilty. And Ottinger =
accepted the plea, even though defense lawyers say many judges won't let =
defendants plead guilty at their first court appearance without a =
lawyer. If they do, however, they're required to make sure the =
defendants know exactly what they're getting into.

Transcripts show Ottinger didn't tell Totten the rights she would be =
giving up if she pleaded guilty, nor the maximum sentence she could =
face.

She was sentenced to probation and ordered to enroll in treatment, =
attend Alcoholics Anonymous and get her General Educational Development =
(GED) diploma.

But at subsequent court hearings, the judge determined that Totten =
wasn't following the rules.

First, Ottinger sent Totten to jail for five days. Over several more =
hearings, she imposed an additional 20 days. At each of these hearings, =
Totten could have had a lawyer, but Ottinger never said that.

Finally in September 2001, Ottinger sent Totten to jail for nearly a =
year - making her total sentence 375 days, above the legal maximum for =
the crime, which is a year. Several defense lawyers said such a long =
term is highly unusual for a first offense.

Fellow inmates told Totten she had a right to a lawyer and helped her =
contact a public defender who not only got Totten out of jail about two =
months into her sentence but got her case dismissed as well.

The judge who released Totten called the violations of her rights =
"egregious."

In June 2004, the Commission on Judicial Conduct released the results of =
its investigation into the Totten case. As part of a settlement =
agreement, Ottinger admitted that she failed to protect Totten's rights, =
as well as the rights of numerous other defendants. "The nature of the =
violations cannot be overstated," the commission wrote in the agreement.

In addition, the commission found that she had provided =
behind-the-scenes legal help to cities in the dispute over her transfer, =
which she was prohibited from doing as a judge. The commission also said =
she treated her court staff poorly, an allegation Ottinger denied. The =
commission required that she attend judicial training and counseling to =
address her management practices.

Since 1982, an average of five judges have been disciplined each year; a =
handful of them were for violations similar to Ottinger's, according to =
commission records.

The right to a lawyer

While Totten still is angry, she concedes that she brought some of this =
on herself. Defense lawyers say that's what often happens when =
defendants go to court without a lawyer. Some defense attorneys see =
their job as part counselor; in Totten's case, that would have meant =
things like getting her into treatment and warning her what would happen =
if she failed.

Yet, according to Bob Boruchowitz, director of The Defender Association, =
a King County public-defense agency, defendants routinely don't get =
lawyers from the start.

"Every day in Washington courts, hundreds of people face criminal =
charges without lawyers and many of them plead guilty and go to jail, =
sometimes unaware they have a right to a lawyer," he wrote last year in =
Washington State Bar Association magazine.

To anyone who has heard the ubiquitous "right to a lawyer" speech on =
television cop shows, this might seem hard to believe.

Nonetheless, for years, many local governments across the state have not =
provided lawyers to poor defendants at their first court appearance in =
misdemeanor cases, which are under the purview of district and municipal =
courts.

(It's standard to get a lawyer at first appearance in Superior Court, =
which handles felonies. Misdemeanor defendants who qualify for public =
defenders get them at later hearings. In some jurisdictions, like King =
County, public defenders have long been provided from the start for =
in-custody defendants but not to those out of custody.)

Boruchowitz, who has studied the issue in depth, said many jurisdictions =
opt against footing the bill for lawyers at defendants' first appearance =
in district or municipal court. And few defendants can afford to come to =
court with their own attorney.

Arguably, the lack of lawyers wasn't causing serious harm in most cases =
because most defendants plead "not guilty" at their first appearance =
anyway, and are assigned lawyers later.

Nonetheless, the lack of lawyers is compounded by the fact that district =
and municipal courts are typically busy, making some judges feel rushed.

Ottinger cites this issue in her defense. She was put in the difficult =
position of handling a busy calendar, while protecting the rights of =
both defendants and victims, all without the assistance of a defense =
lawyer, said Allen.

"There's a tremendous crush of people in there," attorney Allen said. =
"She feels it's unfair if she only gets through half the calendar ... . =
She didn't do this from spite or nastiness."

The commission disagrees, saying her practices were "stand-alone unique =
and defective," a commission lawyer said during a deposition in the =
recent case.

Concerns about lawyerless defendants have recently come to a head. Part =
of the impetus was Boruchowitz, who highlighted the problem and prodded =
officials. But another factor was cases against Ottinger and two =
municipal-court judges who were recently disciplined for similar =
problems.

King County agreed earlier this year to provide defense lawyers for all =
defendants making their first appearance in district court. And since =
the new charges were filed, Ottinger has refused to hear cases for =
jurisdictions that do not provide defense lawyers immediately, Allen =
said.

Still, numerous jurisdictions, including Bellevue, Burien and Kenmore, =
don't provide counsel at misdemeanor arraignments, according to =
information provided by King County District Court Presiding Judge =
Corinna Harn.

New complaints

Now the commission alleges that Ottinger didn't adequately change her =
ways and continued to violate defendants' fundamental rights. The new =
complaint lists 12 examples of defendants who were allegedly denied =
their rights during the summer of 2004.

There is Ryan D. Carter, who pleaded guilty to driving while intoxicated =
with a blood-alcohol level of 0.337 and appeared before Ottinger for a =
probation violation. According to the complaint, she didn't tell him he =
had a right to a lawyer, nor that he had a right to contest the =
allegations.

There is Jorge Vasquez-Ortiz, who was accused of domestic violence and =
was provided a Spanish interpreter in court. The transcript shows the =
judge told him some, but not all, of his rights, but it appears he =
didn't understand everything.

Vasquez-Ortiz said he wanted to plead guilty. When the judge asked =
whether he wanted to proceed without a lawyer, he asked, "Are they going =
to have an attorney here for me?"

Yes, but "not today," she said.

She didn't tell him the consequences of his plea, including the possible =
sentence, or concerns like possible deportation. This violated his =
constitutional rights, the complaint said.

Allen countered that there are other factors that should be taken into =
account. In the case of Vasquez-Ortiz, for example, the interpreter =
certified that the defendant understood what was going on, only later =
filing a declaration stating that Vasquez-Ortiz had been confused.

Barrie Althoff, who was executive director of the Commission on Judicial =
Conduct when the recent complaint was filed, explained it this way.

"It's the judge's obligation to make sure the person gets a fair =
hearing. If there's some doubt, the judge has a remedy to that."

The commission has scheduled a December hearing on the complaint. If =
Ottinger is found to have committed the violations, she could face =
discipline ranging from admonishment, which is a written caution to the =
judge, to removal.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Copyright =A9 2005 The Seattle Times Company


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<DIV>
<DIV class=3Dblock>
<P class=3Dlabel></P>
<P class=3Dstoryhed>Judge has pattern of violating rights, complaint =
alleges</P>
<P class=3Dbyline>By <A href=3D"mailto:mohagan@seattletimes.com">Maureen =

O'Hagan</A></P>
<P class=3Dsource>Seattle Times staff reporter</P></DIV>
<DIV class=3Dblock>
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            =
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            width=3D100></P>
            <P class=3Dcredit>&nbsp;</P>
            <P class=3Dcaption>King County District Court Judge Mary Ann =
Ottinger,=20
            in court in Issaquah in =
2003</P></DIV></TD></TR></TBODY></TABLE>
      <DIV id=3Dubox>
      <DIV =
class=3Dubox_cola>&nbsp;</DIV></DIV></TD></TR></TBODY></TABLE>
<DIV class=3Dbody><!-- Blurb: Due process | Mary Ann Ottinger faces a =
second investigation by Commission on Judicial Conduct. -->
<P>She was young and scared and, admittedly, foolish. But to this day, =
Sara=20
Totten can't understand why she was ordered to spend more than a year in =
jail=20
when her only crime was being a minor in possession of alcohol.</P>
<P>The punishment was later deemed out of line by another judge, and =
Totten was=20
freed early.</P>
<P>The root of the problem, that judge wrote, was District Court Judge =
Mary Ann=20
Ottinger, who sent Totten to jail without telling her she had certain =
rights,=20
including the most basic: the right to a free lawyer.</P>
<P>In fact, Ottinger, who has been a district-court judge in King County =
since=20
1992, routinely violated defendants' rights, according to two complaints =

investigated by the Commission on Judicial Conduct. The first, which =
focused=20
mainly on Totten, was resolved in June 2004 when the judge admitted her =
errors,=20
was censured and promised to change.</P>
<P>The commission now says that Ottinger continued to show a "pattern or =

practice of violating criminal defendants' fundamental and =
constitutionally=20
protected due process rights."</P>
<P>A month after disciplining Ottinger the first time, it began =
investigating=20
new complaints that were strikingly similar to Totten's. That resulted =
in=20
charges filed by the commission in June.</P><!--begin text box-->
<DIV class=3Dinfobox>
<P><STRONG><STRONG>Mary Ann Ottinger</STRONG></STRONG><BR><IMG =
height=3D1=20
src=3D"http://seattletimes.nwsource.com/art/ui/dot_grey808080.gif" =
width=3D192=20
vspace=3D2><BR><IMG height=3D6=20
src=3D"http://seattletimes.nwsource.com/art/ui/dot_clear.gif"=20
width=3D1><BR><STRONG>Age:</STRONG> 56</P>
<P><STRONG>Experience:</STRONG> Admitted to the Washington State Bar in =
1973.=20
Trial lawyer specializing in medical-negligence law.</P>
<P><STRONG>Judicial experience:</STRONG></P>
<P>Appointed to the King County District Court bench in 1992. Has served =
mainly=20
in the Issaquah court.</P></DIV><!--end text box-->
<P>Ottinger, 56, declined to comment except through her lawyer, David =
Allen, who=20
said the judge may have made occasional technical slip-ups, but she =
follows the=20
Code of Judicial Conduct, which lays out ethical standards for judges. =
The real=20
problem, he argues, is that some local governments aren't providing =
lawyers=20
immediately to defendants in district and municipal court, and judges =
like=20
Ottinger are unfairly being held responsible.</P>
<P><STRONG>Jailed for an MIP</STRONG></P>
<P>By the time Totten and Ottinger crossed paths, Ottinger had become a =
fixture=20
in the Issaquah courthouse.</P>
<P>Ottinger presided over cases out of Issaquah, Sammamish, Snoqualmie =
and North=20
Bend, among other cities. Government officials there were quite attached =
to her.=20
In fact, when Ottinger was transferred to Redmond in 2003 in a =
reorganization of=20
King County's district courts, those city governments fought vigorously =
to get=20
her back.</P>
<P>Even before this, however, the Commission on Judicial Conduct was =
looking at=20
Ottinger. In 2002, she was told of concerns about how she advised =
defendants of=20
their rights. Ottinger said she would change her procedures, but the =
commission=20
soon heard that she hadn't. The commission opened an investigation, and =
Totten's=20
case became the centerpiece.</P>
<P>Totten's legal problems began in June 1999, when, at 17, she was =
caught=20
drinking and registered a blood-alcohol level of 0.071 =97 lower than =
the legal=20
limit for an adult but a crime for someone under 21.</P>
<P>By her first court hearing, in January 2000, she had turned 18. There =
was=20
neither defense lawyer nor prosecutor there.</P>
<P>The hearing was over in minutes. Totten pleaded guilty. And Ottinger =
accepted=20
the plea, even though defense lawyers say many judges won't let =
defendants plead=20
guilty at their first court appearance without a lawyer. If they do, =
however,=20
they're required to make sure the defendants know exactly what they're =
getting=20
into.</P>
<P>Transcripts show Ottinger didn't tell Totten the rights she would be =
giving=20
up if she pleaded guilty, nor the maximum sentence she could face.</P>
<P>She was sentenced to probation and ordered to enroll in treatment, =
attend=20
Alcoholics Anonymous and get her General Educational Development (GED)=20
diploma.</P>
<P>But at subsequent court hearings, the judge determined that Totten =
wasn't=20
following the rules.</P>
<P>First, Ottinger sent Totten to jail for five days. Over several more=20
hearings, she imposed an additional 20 days. At each of these hearings, =
Totten=20
could have had a lawyer, but Ottinger never said that.</P>
<P>Finally in September 2001, Ottinger sent Totten to jail for nearly a =
year =97=20
making her total sentence 375 days, above the legal maximum for the =
crime, which=20
is a year. Several defense lawyers said such a long term is highly =
unusual for a=20
first offense.</P>
<P>Fellow inmates told Totten she had a right to a lawyer and helped her =
contact=20
a public defender who not only got Totten out of jail about two months =
into her=20
sentence but got her case dismissed as well.</P>
<P>The judge who released Totten called the violations of her rights=20
"egregious."</P>
<P>In June 2004, the Commission on Judicial Conduct released the results =
of its=20
investigation into the Totten case. As part of a settlement agreement, =
Ottinger=20
admitted that she failed to protect Totten's rights, as well as the =
rights of=20
numerous other defendants. "The nature of the violations cannot be =
overstated,"=20
the commission wrote in the agreement.</P>
<P>In addition, the commission found that she had provided =
behind-the-scenes=20
legal help to cities in the dispute over her transfer, which she was =
prohibited=20
from doing as a judge. The commission also said she treated her court =
staff=20
poorly, an allegation Ottinger denied. The commission required that she =
attend=20
judicial training and counseling to address her management =
practices.</P>
<P>Since 1982, an average of five judges have been disciplined each =
year; a=20
handful of them were for violations similar to Ottinger's, according to=20
commission records.</P>
<P><STRONG><STRONG>The right to a lawyer</STRONG></STRONG></P>
<P>While Totten still is angry, she concedes that she brought some of =
this on=20
herself. Defense lawyers say that's what often happens when defendants =
go to=20
court without a lawyer. Some defense attorneys see their job as part =
counselor;=20
in Totten's case, that would have meant things like getting her into =
treatment=20
and warning her what would happen if she failed.</P>
<P>Yet, according to Bob Boruchowitz, director of The Defender =
Association, a=20
King County public-defense agency, defendants routinely don't get =
lawyers from=20
the start.</P>
<P>"Every day in Washington courts, hundreds of people face criminal =
charges=20
without lawyers and many of them plead guilty and go to jail, sometimes =
unaware=20
they have a right to a lawyer," he wrote last year in Washington State =
Bar=20
Association magazine.</P>
<P>To anyone who has heard the ubiquitous "right to a lawyer" speech on=20
television cop shows, this might seem hard to believe.</P>
<P>Nonetheless, for years, many local governments across the state have =
not=20
provided lawyers to poor defendants at their first court appearance in=20
misdemeanor cases, which are under the purview of district and municipal =

courts.</P>
<P>(It's standard to get a lawyer at first appearance in Superior Court, =
which=20
handles felonies. Misdemeanor defendants who qualify for public =
defenders get=20
them at later hearings. In some jurisdictions, like King County, public=20
defenders have long been provided from the start for in-custody =
defendants but=20
not to those out of custody.)</P>
<P>Boruchowitz, who has studied the issue in depth, said many =
jurisdictions opt=20
against footing the bill for lawyers at defendants' first appearance in =
district=20
or municipal court. And few defendants can afford to come to court with =
their=20
own attorney.</P>
<P>Arguably, the lack of lawyers wasn't causing serious harm in most =
cases=20
because most defendants plead "not guilty" at their first appearance =
anyway, and=20
are assigned lawyers later.</P>
<P>Nonetheless, the lack of lawyers is compounded by the fact that =
district and=20
municipal courts are typically busy, making some judges feel rushed.</P>
<P>Ottinger cites this issue in her defense. She was put in the =
difficult=20
position of handling a busy calendar, while protecting the rights of =
both=20
defendants and victims, all without the assistance of a defense lawyer, =
said=20
Allen.</P>
<P>"There's a tremendous crush of people in there," attorney Allen said. =
"She=20
feels it's unfair if she only gets through half the calendar ... . She =
didn't do=20
this from spite or nastiness."</P>
<P>The commission disagrees, saying her practices were "stand-alone =
unique and=20
defective," a commission lawyer said during a deposition in the recent =
case.</P>
<P>Concerns about lawyerless defendants have recently come to a head. =
Part of=20
the impetus was Boruchowitz, who highlighted the problem and prodded =
officials.=20
But another factor was cases against Ottinger and two municipal-court =
judges who=20
were recently disciplined for similar problems.</P>
<P>King County agreed earlier this year to provide defense lawyers for =
all=20
defendants making their first appearance in district court. And since =
the new=20
charges were filed, Ottinger has refused to hear cases for jurisdictions =
that do=20
not provide defense lawyers immediately, Allen said.</P>
<P>Still, numerous jurisdictions, including Bellevue, Burien and =
Kenmore, don't=20
provide counsel at misdemeanor arraignments, according to information =
provided=20
by King County District Court Presiding Judge Corinna Harn.</P>
<P><STRONG>New complaints</STRONG></P>
<P>Now the commission alleges that Ottinger didn't adequately change her =
ways=20
and continued to violate defendants' fundamental rights. The new =
complaint lists=20
12 examples of defendants who were allegedly denied their rights during =
the=20
summer of 2004.</P>
<P>There is Ryan D. Carter, who pleaded guilty to driving while =
intoxicated with=20
a blood-alcohol level of 0.337 and appeared before Ottinger for a =
probation=20
violation. According to the complaint, she didn't tell him he had a =
right to a=20
lawyer, nor that he had a right to contest the allegations.</P>
<P>There is Jorge Vasquez-Ortiz, who was accused of domestic violence =
and was=20
provided a Spanish interpreter in court. The transcript shows the judge =
told him=20
some, but not all, of his rights, but it appears he didn't understand=20
everything.</P>
<P>Vasquez-Ortiz said he wanted to plead guilty. When the judge asked =
whether he=20
wanted to proceed without a lawyer, he asked, "Are they going to have an =

attorney here for me?"</P>
<P>Yes, but "not today," she said.</P>
<P>She didn't tell him the consequences of his plea, including the =
possible=20
sentence, or concerns like possible deportation. This violated his=20
constitutional rights, the complaint said.</P>
<P>Allen countered that there are other factors that should be taken =
into=20
account. In the case of Vasquez-Ortiz, for example, the interpreter =
certified=20
that the defendant understood what was going on, only later filing a =
declaration=20
stating that Vasquez-Ortiz had been confused.</P>
<P>Barrie Althoff, who was executive director of the Commission on =
Judicial=20
Conduct when the recent complaint was filed, explained it this way.</P>
<P>"It's the judge's obligation to make sure the person gets a fair =
hearing. If=20
there's some doubt, the judge has a remedy to that."</P>
<P>The commission has scheduled a December hearing on the complaint. If =
Ottinger=20
is found to have committed the violations, she could face discipline =
ranging=20
from admonishment, which is a written caution to the judge, to =
removal.</P>
<P><EM>Maureen O'Hagan: 206-464-2562 or <A=20
href=3D"mailto:mohagan@seattletimes.com">mohagan@seattletimes.com</A></EM=
></P></DIV>
<P class=3Dlabel>Copyright =A9 2005 The Seattle Times =
Company</P></DIV></DIV>
<DIV><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV></BODY></HTML>

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