DUI cases in jeopardy because of possible rubber stamping, defense attorneys say

The internal investigation into alleged mishandling of dozens of drunken-driving cases by Seattle police could jeopardize prosecutions if the credibility of officers is called into question, according to defense attorneys.

"Anytime an officer fails to follow procedure but says he did follow procedure, it cuts right to the heart of his credibility," said Bellevue attorney Jon Fox, who has defended clients against driving-under the-influence (DUI) charges in Seattle Municipal Court for nearly 30 years. "And credibility is in most DUI cases the No. 1 issue. Without the credibility of the officer, most DUI cases fall down like a house of cards."

Seattle police confirmed Monday they are conducting an internal investigation into allegations that arrest reports weren't personally screened and approved by a sergeant in the DUI Squad, as required under department policy.

The sergeant, identified by sources as 32-year veteran David A. Abe, and three officers in the five-member squad have been placed on desk duties during the investigation. Another officer has been cleared and remains on DUI patrol, along with officers who were to be newly assigned to the squad and patrol officers who watch for impaired drivers.

In response to the investigation, the Seattle City Attorney's Office is putting DUI prosecutions tied to the officers on hold pending findings and a review by city attorneys of current and past cases.

The Police Department on Monday said "administrative-policy violations" had been uncovered, prompting the internal investigation, while the head of the Seattle police union, Sgt. Rich O'Neill, labeled the issue a "paperwork snafu" that didn't affect the validity of cases.

One source said Abe, 56, approved arrest reports by phone. Under department policy, supervisors must screen and approve arrests in person at the scene or a precinct.

Officers used a rubber stamp to put Abe's name on arrest reports, the source said.

The practice appeared to evolve into instances where the stamp was used without officers first contacting Abe, the source said. Seattle police said they are looking into that possibility.

City attorneys must decide whether they can go forward with dozens of cases they say might have been compromised, knowing defense attorneys could use the information to undermine the credibility of the officers.

Defense attorneys on Tuesday applauded the City Attorney for suspending cases, saying serious questions need to be addressed.

"It's about the fraud and how they represented things, and that's where things will come to bear," said Kevin Trombold, a DUI defense attorney in Seattle.

Officers who handle DUI cases must testify in court to their reasons for stopping a driver, their field observations and the validity of breath tests they perform. Video evidence from patrol cars also can be used.

"It does impact every level of the case, because it involves the officer's integrity," said Francisco Duarte, a Seattle attorney who regularly defends DUI cases.

Jurors could conclude officers were "cutting corners or not following procedures," Duarte said.

Prosecutors will have to consider the strength of all the evidence they have, Fox said.

But if there is a question about the veracity of an officer, Fox said, "that's the path toward the jury finding reasonable doubt in any case, no matter how bad the alleged facts might be."

Fox said he expects prosecutors likely will consider reducing charges to negligent or reckless driving in some cases they previously wouldn't have been willing to negotiate.

Others could be so "badly damaged" that the city will dismiss them, Fox said.

He said he also expects defense attorneys to challenge some DUI convictions, most likely from jury trials, particularly where the credibility of an officer's testimony was key to the outcome.

Lisa Daugaard, deputy director of The Defender Association, a public-defense agency in Seattle, said the most significant issue is not the violation of a Police Department rule but the possible false representation, for reasons of convenience, that the rule was being followed.

Much of DUI investigation is inconvenient, involving painstaking, methodical and inefficient work, Daugaard said.

Once an officer decides a rule is inconvenient and doesn't need to be followed, she said, "where does that end" when it comes to other inconvenient requirements?

Duarte said it would be unwise for prosecutors to "endorse a witness whose credibility is going to be challenged before the jury," potentially harming the officer's career.

He said it is too early to judge what is going to happen with the cases, but he called the City Attorney's decision to put cases on hold "unprecedented" and an indication the office is "very serious about doing the right thing."

Mark Prothero, a Kent defense attorney who handles some DUI cases in Seattle, said prosecutors are likely to evaluate the situation on a case-by-case basis.

But he doesn't expect prosecutors to allow officers to testify if they swore to something that wasn't true.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com