Thank Goodness for Lawyers
Fortunately, Hession and Tucker are lawyers skilled at trying to convince nonlawyers that feces is really fruit salad. What they're trying to feed people in Spokane is not fruit salad.
The Spokesman-Review, Spokane's daily newspaper, ran stories reporting the alleged rape of a 16-year-old girl by a 35-year-old Spokane City firefighter at a city fire station while he was on duty on February 10, 2006. The firefighter met the girl through the Internet. Subsequent investigation determined the couple engaged in sexual contact at the fire station, however the contact was consensual. In Washington State, a 16-year-old can legally give consent for sexual contact. The firefighter was thus quickly cleared of the rape charge.
The City of Spokane very much wanted its citizens to believe that was the end of the story. It was distasteful but consensual sex. Nothing more. But the diligent investigation by The Spokesman-Review disclosed much more than the City government wanted to make public. It revealed probable cause to believe other crimes had been committed.
In a March 3, 2006, story headlined Probe targets detectives, The Spokesman-Review staff writers Bill Morlin and Karen Dorn Steele reported that in response to the girl's initial rape complaint, the Spokane Police Department sent a uniformed officer to investigate. It sounds as if that officer recognized the case had significant blow-up-in-your-face potential and wisely made a phone call. Awakened from his slumber, Acting Police Chief Nicks ordered a detective and the detective's sergeant sent to the fire station to interview the accused firefighter. During the interview the firefighter apparently revealed he possessed digital images made during the sexual encounter in the firehouse. It is reasonable to speculate that the firefighter willingly showed the images to the police detectives for the purpose of demonstrating the girl's consensual participation in the sexual contact.
The detectives concluded there was no probable cause to believe that rape had been committed. Then they either erased the digital images themselves or they allowed the firefighter to erase them, ostensibly to protect the interests of the minor female. The detectives submitted a written report to the county prosecutor. In The Spokesman Review story published March 4, 2006, and headlined No charges in firehouse sex, staff writer Bill Morlin reported that the detectives' report to the prosecutor described the deleted images. A deputy prosecuting attorney who reviewed the report concluded no criminal charges were warranted.
Let's take a common-sense, non-lawyerly look at some of the laws the police and the deputy prosecuting attorney evidently concluded were not prosecutable.
Looking at the rape charge that started this whole unravelling, we need to understand that under RCW 9A.44, the 16-year-old girl was a minor but not a child. Thus, if the crime of rape had occurred, it would have been prosecuted as rape, not rape of a child. At age 16, she could give consent for sexual contact.
The subsequent crimes that may go unprosecuted relate to the making and possible transmitting of the photographic images of the minor girl engaging in sexually explicit conduct. Before looking at the specific crimes, read the important definitions at RCW 9.68A.011.
The firefighter communicated with the minor girl via the Internet and presumably invited her to meet him for his purpose of engaging in sexually explicit conduct. RCW 9.68A.090 - Communication with a minor for immoral purposes is a gross misdemeanor. It can be a class C felony in Washington, but no evidence has been published to support that charge. Some might suggest that perhaps the girl misrepresented her age to the firefighter, so he could not have known she was a minor when he communicated with her. As noted in RCW 9.68A.110(3), it is not a bar to arrest that the defendant did not know the girl's age. However, at trial it is a defense which the defendant must prove by a preponderance of the evidence that he made a reasonable bona fide attempt to determine the minor's true age by requiring positive documentary identification and did not rely solely on the oral allegations or apparent age of the minor.
In other words, there was probable cause to arrest or seek an arrest warrant for the firefighter for violation of RCW 9.68A.090 - Communication with a minor for immoral purposes. The issue of the minor girl's representation and proof of age could have been a defense at trial but not in determining cause for arrest.
The next crime for which the firefighter might have been arrested and charged is RCW 9.68A.040 - Sexual exploitation of a minor. Specifically, he could have been arrested and charged undeer RCW 9.68A.040(1)(b) which reads, "(1)A person is guilty of sexual exploitation of a minor if the person (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." Sexual exploitation of a minor is a class B felony punishable under chapter RCW 9A.20.
The police might also have arrested and charged the firefighter with a violation of RCW 9.68A.070 - Possession of depictions of minor engaged in sexually explicit conduct. The law states that a person who knowingly possesses visual or printer matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.
Unfortunately, we now know that the police detective and sergeant either erased or allowed the erasure of the images depicting the minor girl's sexually explicit conduct. Thus, the evidence of the felony violations was destroyed. Lawyer-Mayor Hession, when asked by reporters if the erasure of the images constituted evidence tampering or destruction, replied, "Absolutely not."
Really? If we presume the police detective and sergeant were conversant with Washington's criminal code as their duties require, then we have to presume they both had probable cause to believe that either a class B or C felony had been committed. If the detective and sergeant concluded that it was the firefighter who made the images or caused them to be made, they had probable cause to believe the firefighter had committed a class B or C felony. RCW 9A.76.050(5) explains that a person (presumably including police detectives) "renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime..., he (5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person. Specifically, RCW 9A.76.080 provides that a person is guilty of rendering criminal assistance in the second degree (a gross misdemeanor) if he or she renders criminal assistance to a person who has committed or is being sought for a class B or class C felony...
It gets worse.
Presumably the police detective and the sergeant (and perhaps persons as yet unidentified up the Spokane Police Department food chain) were aware of the images of the minor girl and agreed to erase or allow the erasure of the images.
RCW 9A.28.040 - Criminal conspiracy provides that "A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement." If destruction of the evidence (image erasure) occurred, it was conduct constituting a crime. If the detective and sergeant agreed to erase or allow the erasure, the "agree" element has been met. If the detective or sergeant then either erased the images or surrendered the image chip to another party to effect the erasure, they took a "substantial step in the pursuance of the agreement". Criminal conspiracy is a gross misdemeanor when an object of the conspiratorial agreement is a class C felony. It is a class C felony when an object of the conspiratorial agreement is a class B felony.
The newspaper further reported a curious statement by Spokane city spokeswoman Marlene Feist. She said, "There is some evidence that city computers were used." Computers. Plural. And someone had to have mentioned the computers. Who? Probably the firefighter. That very strongly suggests the firefighter may have distributed the girl's images via the Internet to coworkers, friends, who knows who. It is also possible that the images may have been loaded onto one or more city computers and therefore may still exist at some location. The police should have taken appropriate steps to preserve the forensic evidentiary value of the computers on which the images may have been viewed and stored.
If the Internet was used to pass the photos around, then there is the possibility the images were passed over state lines. If that can be shown, then the federal government has an interest, because Title 18, US Code, Section 2252 explains that any person who knowingly transports (including transmission via the Internet) images of a minor engaging in sexually explicit conduct in interstate commerce has committed a federal crime. That is the Federal Bureau of Investigation's jurisdiction.
It's becoming apparent that the Spokane Mayor and Spokane County prosecuting attorney are in their circle-the-wagons mode. I hope what they're feeding the citizens at least tastes like fruit salad, because it stinks like...