In the early days of August, it looked like City Attorney Pete Holmes' tactic for leveraging harsh punishments against sex buyers was in trouble. A filing from a public defender working on behalf of one of the men caught up in the city's massage parlor stings revealed that the prosecutor had directed his attorneys not to offer pre-trial diversion to men accused of buying sex. The strategy appeared to contradict the city's lauded criminal justice reform efforts allowing people accused of other misdemeanor crimes to avoid criminal convictions.
Public defenders also expressed concern that a sting operation that trapped defendants into guilty pleas could have far more serious consequences for undocumented residents. Even deferred sentences for first-time offenders are considered permanent convictions in immigration court, and could trigger deportation.
Municipal Court Judge Karen Donahue ruled in favor of the accused sex buyer. She found that a blanket policy ruling out pre-trial diversion for men caught up in the massage parlor stings violated due process, and she ordered that the city consider diversion. But on Monday, an appeal in King County Superior Court overturned Donahue's ruling.
A law firm hired by the city (to the tune of $60,000) argued in King County Superior Court that Judge Donahue had illegally inserted itself above the city attorney's policies. The sex buyer in question didn't have a due process right to pre-trial diversion, the city argued, and the city's policy didn't rule out the possibility of individual discretion. Plus, the city's lawyer said in a 117-page brief, the municipal court "invalidate[d] the [city attorney's] standard charging policy," which deprived the city attorney of its power to charge people.
The public defender for the accused sex buyer laid out a different case. In a 57-page brief, attorney Bob Goldsmith argued that Judge Donahue didn't improperly shut down the city's charging policies. Instead, Goldsmith said, the judge merely ordered the prosecutor's office to review the possibility of pre-trial diversion, not grant it.
In addition, Goldsmith asked King County Superior Court Judge Sean O'Donnell to recuse himself from the case. The reason, according to e-mails written by Goldsmith and entered into the court record, was that O'Donnell had participated in the King County Commercially Sexually Exploited Children Task Force, which supported the "end demand" strategy enshrined in the city attorney's prosecutorial decisions.
"I appreciate your civic involvement in these important issues but on behalf of my client this is perilously close to the issues in this case, if not directly on point," Goldsmith wrote.
Judge O'Donnell rejected the motion to recuse himself, as well as Goldsmith's other arguments. Goldsmith's client's case will return to the municipal court, where he faces trial for his misdemeanor charge of sexual exploitation, formerly known as "patronizing a prostitute."
City attorney's office spokesperson Kimberly Mills said that City Attorney Pete Holmes was pleased that O'Donnell's ruling affirmed the city's prosecutorial discretion, and insisted that no immigration consequences exist for first-time offenders.
“As Seattle’s elected city attorney, Pete implemented the policy after carefully considering a variety of factors, including the need and the best way to reduce demand in the sex trade," she said. "As for immigration consequences, as our office has stated all along, the federal law is clear: There are no immigration consequences for first-time offenders who commit this offense. Our office will continue to apply its policy as fairly and evenhandedly as possible.”
But Goldsmith told The Stranger that he still thinks the city attorney's hardline policy creates problems for non-citizens who could be deported for crimes of moral turpitude, especially under the title of a crime like "sexual exploitation." wrongheaded.
"Bottom line: city and its supporters are waging an ideological 'Pollyanna' battle against 'demand,' and we know how that has worked in the drug world," Goldsmith told The Stranger by e-mail. "Think about it: everyone on earth has a sex drive; not everyone craves drugs."