Critics say error in trial casts doubt on acting attorney

With more than 30 years of experience as a prosecutor, Jeffrey Sullivan, the acting U.S. attorney for Western Washington, should have the legal and political chops to permanently assume the position left vacant by the firing of his former boss, John McKay.

Sullivan, one of three lawyers being considered by the White House for the job, headed the high-profile criminal division under McKay. Before that, he spent 27 years as the elected Yakima County prosecutor. Described by allies as thorough, thoughtful and committed to justice, he has tried more than 100 jury cases and has argued before the U.S. Supreme Court.

But as the candidates for the post are now scrutinized, others say another side of Sullivan shouldn't be overlooked: that he once withheld evidence that could have cleared an innocent man. Among those critics are two Seattle legal experts who say it casts doubt over whether Sullivan is an appropriate choice for U.S. attorney.

In 2004, a state Court of Appeals ruled that Sullivan, as Yakima County prosecutor, had been responsible for "egregious misconduct" in a 2002 robbery trial when he connected a stolen gun to a defendant named Alexander Martinez, even though Sullivan knew of evidence disproving the connection.

"The State prosecutor's withholding of exculpatory evidence until the middle of a criminal jury trial is likewise so repugnant to principles of fundamental fairness that it constitutes a violation of due process," the court ruled.

Sullivan claims the matter was a clerical error.

Now some critics say the case was shocking enough to question making Sullivan one of the top law-enforcement officials in the state. His supporters, though, say enough doubt remains about Sullivan's role that it shouldn't disqualify him.

"You have to place it in context — things can happen," said King County Prosecutor Norm Maleng, one of several prominent backers. "He's a gifted trial lawyer in the courtroom, a wonderful advocate, a superb manager."

Sullivan, 63, is being considered for the job along with former Republican congressman Rick White and Michael Vaska, a Seattle corporate lawyer.

Sullivan has been serving as U.S. attorney since McKay was fired by the Bush administration in December. The firing, one of among eight involving U.S. attorneys forced out by the administration, has triggered accusations of politicizing the Justice Department and has put Attorney General Alberto Gonzales in a fight for his job.

A gun, a witness, a jury

In January 2002, Sullivan was the Yakima County prosecuting attorney trying fruit-company manager Alexander Martinez for conspiracy to commit murder and other crimes in Yakima County Superior Court.

Martinez was accused of helping to rob a co-worker on March 20, 2001. Two brothers testified Martinez had given them two handguns, a black one and a silver one, to use in the robbery.

Sheriff's deputies learned the silver gun had been stolen in a burglary in October 2000. And a fruit-company worker told police Martinez had once offered to sell her two guns — black and silver. But at first she was not sure of the exact date.

Later, two months before the trial, the woman testified that Martinez had actually offered to sell her a silver gun in December 1999 so it could not have been the same gun stolen in 2000 and used in the robbery.

Nevertheless, Sullivan told the jury the stolen gun was connected to Martinez and the robbery.

Two weeks into the trial, Martinez's attorney, Adam Moore, realized he had never been made aware of the contradictions about the gun because he hadn't been given the original burglary report that showed the gun had been stolen after Martinez allegedly offered a silver gun to his co-worker.

Moore declined comment for this story.

The trial ended in a hung jury, and the state refiled charges. Martinez's defense attorney alleged government misconduct, and the judge dismissed the case. Sullivan's appeal was rejected as the court issued its ruling that he had withheld evidence.

But Sullivan was not sanctioned. The Washington State Bar Association reviewed the case after the original Superior Court judge complained, said Lenell Rae Nussbaum of Seattle, Martinez's appeals lawyer. It found insufficient evidence of unethical behavior and dismissed the grievance in January 2005.

Previous controversy

It wasn't the first time Sullivan had run into trouble as a prosecutor.

In 2000, during his unsuccessful run for a seat on the state Supreme Court, it came to light that in the late 1980s Sullivan had used a racial slur in describing Hispanic inmates at the Yakima County jail. Sullivan apologized after an uproar from the state's Hispanic, Native American, Asian and African-American bar associations.

Sullivan's first public controversy had come years earlier, in 1979, when the American Civil Liberties Union and victim advocates loudly protested a policy he enacted requiring rape victims to take lie-detector tests. Sullivan has since said the policy was a mistake.

In 1991, Sullivan was also criticized for secretly arraigning a Yakima police lieutenant on a theft charge. Sullivan responded that he thought the officer had a right to privacy.

But critics have not raised any of those issues publicly in Sullivan's present bid for U.S. attorney. None of the minority bar associations have taken an official position on his candidacy.

Actions defended

Sullivan has declined to comment on the Martinez case and his candidacy for the permanent U.S. attorney post. But in a document he sent to the bar association during the Martinez case, he defended his actions, saying "there was absolutely no proof that I intentionally withheld the burglary report from defense counsel," he wrote.

On the contrary, he said, he believed his paralegal had sent the reports to the defense. And he has argued that when he first received the report of the gun theft, he wasn't immediately aware it was important to Martinez's defense.

The appeals court, though, rejected that argument.

"Mr. Sullivan's insistence that he did not know the significance of the Ramirez burglary report until the middle of the trial is ludicrous," it wrote.

Critics raise doubts

It's not unusual for longtime attorneys, especially those who handle high-profile cases, to be admonished by judges or to be investigated by the state bar association. However, University of Washington law professor Robert Aronson called it "very disturbing for someone who would serve as the United States attorney."

The Constitution demands that prosecutors provide defendants with evidence that might exonerate them, Aronson said. And Sullivan's conduct in the Martinez case was particularly egregious because the evidence about the gun was not a mere technicality, he said. It raised substantial doubt of Martinez's guilt.

Another expert said the case seemed out of character for Sullivan — but disturbing nonetheless. "He's not somebody viewed as a mad dog who would do anything to get a conviction; he was viewed as tough but reasonably fair," said John Strait, a Seattle University associate law professor.

"If it's true that he actually stacked the deck on evidence in homicide case in order to gain a conviction, that would be very, very serious misconduct, and would factor into a decision, in my view, on whether he should be U.S. attorney."

Then again, Strait said, if Sullivan's mistake was the bureaucratic error as Sullivan claims, it shouldn't disqualify him. "It's not a badge of honor, but mistakes are made," he said.

Supporters impressed

Supporters have been quick to rally behind Sullivan on that very point. "The defense lawyer couldn't say for certain whether or not he ever received those materials," said John Wolfe, a longtime King County defense attorney who has worked with Sullivan. " If Jeff tells me something is true, I believe him; I've butted heads with Jeff, but I've never questioned his work."

Maleng said Sullivan's record should be evaluated in its entirety.

"I would expect in 30-plus years as a prosecutor, he would have received one complaint like that," said Maleng, who has been King County prosecuting attorney since 1979.

"These issues are ones we all face." [But] his record is a remarkable achievement."

Natalie Singer: 206-464-2704 or nsinger@seattletimes.com