No third trial for ex-deputy accused of assaulting girl in holding cell

The King County Prosecutor's Office said Friday that it will not pursue a third trial for former sheriff's Deputy Paul Schene after two juries were unable to reach a unanimous verdict on whether he assaulted a teenage girl during a videotaped confrontation in a holding cell.

"Given that two juries were unable to reach a unanimous verdict, which requires proof beyond a reasonable doubt, prosecutors believe that a third trial is unwarranted," the Prosecutor's Office said in a written statement.

Schene's first trial ended in January with jurors split 11-1 in favor of conviction, while jurors in his second trial deadlocked 11-1 last week to acquit him.

King County Prosecutor Dan Satterberg said Friday that his office asked jurors in both trials to "take police misconduct and put a label of criminal misconduct on it. And they were not able to do that."

Schene's attorney, Peter Offenbecher, of Seattle, said Friday, "We're gratified Dan Satterberg has thought carefully about it and made what we think is the right decision."

Schene, 32, who took the witness stand to defend himself before both juries, is fighting to get his job back with the King County Sheriff's Office. But Schene is "thinking about his options," Offenbecher said, including whether he wants to work for the Sheriff's Office.

The two trials, without a conviction, put a "tremendous emotional strain on him and his family" and has "taken a lot out of him," Offenbecher said.

Schene still might want to work for another law enforcement agency, Offenbecher said.

In both trials, Senior Deputy Prosecutor Gary Ernsdorff asked jurors to find that Schene used unreasonable force when he kicked, grabbed and twice punched Malika Calhoun, then 15, after she flipped an athletic shoe at him when she was told to remove her shoes at the door to the cell.

The incident was captured on videotape by surveillance cameras inside SeaTac City Hall, where Calhoun and a female friend were being booked Nov. 29, 2008, for allegedly stealing her guardian's car.

The case attracted intense interest after the release of the video in February 2009, shortly after Schene was charged with fourth-degree assault, a misdemeanor punishable by up to one year in jail and a $5,000 fine.

During closing arguments in the second trial, Offenbecher said his client had to make a "split-second decision" when Calhoun kicked her sneaker at him, and his decision was to quickly get the girl under control.

"He did it the way he was trained to do it. It was a textbook example," Offenbecher said of Schene's response.

As jurors left the courthouse after a mistrial was declared, a male juror, who did not give his name, said of Schene's conduct, "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use."

The prosecution didn't prove beyond a reasonable doubt that unreasonable and unnecessary force was used, the juror said.

Jurors who voted 11-1 to convict in Schene's is first trial believed he followed accepted training techniques, but the majority ultimately concluded he did not need to use those techniques in the first place to subdue Calhoun, the chief juror said in an interview in February.

Schene could have shut the cell door or yelled at Calhoun, the juror said.

Satterberg, in explaining his decision not to try Schene a third time, noted the "combined score" of 12 to 12 over two trials, saying sometimes a "no-decision is still a decision."

While people have formed their own opinions about what they saw on the videotape, jurors were careful in reaching their own decisions, Satterberg said.

Police officers are asked to do difficult work, and jurors were "reluctant to take these facts and label them a crime," Satterberg said.

Schene was fired because of the incident, but he is challenging the action in an arbitration that was put on hold pending the outcome of the criminal case. Sheriff Sue Rahr will make her case to an arbitrator to uphold Schene's termination, sheriff's spokesman Sgt. John Urquhart said last week.

Satterberg said his office will now turn its attention to defending the firing, to make sure Schene doesn't wear the "badge of sheriff's deputy again."

Schene also remains under scrutiny by the U.S. Department of Justice (DOJ) for a possible criminal civil-rights prosecution. The U.S. Attorney's Office in Seattle has said it has been monitoring the case since the videotape was first made public.

"Now that there have been two trials, we have a very complete record to review" with lawyers from the DOJ's Civil Right's Division in Washington, D.C., said spokeswoman Emily Langlie. Lawyers from he division consult with the local office and must sign off on any case before charges are filed.

Langlie said there is "no timetable" for a decision.

Such prosecutions are extremely rare in the Western District of Washington, where the U.S. Attorney's Office has filed only one criminal civil-rights case against a law-enforcement officer in its history. That case, tried in 2008, resulted in an acquittal of former King County sheriff's Deputy Brian Bonnar, who was accused of violating the civil rights of a woman he helped arrest in October 2005.

Calhoun sued the county over the incident. The case was settled last year, with the county paying $125,000 into a trust in her name, according to the King County Prosecutor's Office.

Third trials are rare in criminal cases in King County

In 2000, the Prosecutor's Office decided not to try a third time to convict a former Seattle homicide detective charged with theft.

The decision ended the case against Earl "Sonny" Davis Jr., and closed a difficult chapter for the Seattle Police Department. that ushered in citizen oversight of internal discipline in the department.

In the first trial, a jury deadlocked 7-5 in 1999 in favor of acquitting Davis on a charge he stole $10,000 from a crime scene in 1996. Prosecutors alleged that Davis returned most of the money the next day, but kept an unknown amount.

Davis' second trial, in 2000, also ended in a mistrial after jurors split 11-1, with the majority leaning toward a conviction.

Davis, who retired, had denied guilt, saying his former partner concocted the story.

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

Information from Seattle Times archives is included in this report