What did Judge McKenna actually say about prosecutors? Here’s the transcript

Seattle’s criminal justice system is at war. This week the City Attorney and public defenders joined forces against Seattle's presiding judge.

On Wednesday, the city’s top prosecutor and King County’s head of public defense sent a rare, joint letter that accused Seattle Municipal Court Presiding Judge Ed McKenna of violating rules of judicial conduct.

Since then, McKenna has fired back with a letter of his own denying any ethical lapses.

The feud became public on Wednesday, when Seattle City Attorney Pete Holmes and Anita Khandelwal, director of the King County Department of Public Defense, alleged that Judge McKenna made statements that undermined public confidence in judicial impartiality – including a speech at a Downtown Seattle Association breakfast on April 19.

“There, you suggested that you felt bound to follow prosecutors’ recommendations 99 percent of the time,” Holmes and Khandelwal wrote. “This suggests the very opposite of impartiality – and that you disregard the advocacy of defense counsel.”

But audio of Judge McKenna’s comments at the Downtown Seattle Association's City Maker breakfast shows that Judge McKenna did not say he personally felt “bound to follow prosecutors’ recommendations 99 percent of the time" — instead he spoke about judges more generally.

The record does show, however, that Judge McKenna said the system was "prosecution-driven" -- and that he's critical of Pete Holmes’ approach and some of the plea deals his staff has negotiated with public defenders.

That recording at the association breakfast revealed a political conflict in the criminal justice system that's reached a boiling point as frustration with Seattle's homelessness crisis has grown — a debate that has become more heated since KOMO aired its controversial documentary, “Seattle is Dying.”

Holmes and Khandelwal also said that McKenna on other occasions “urged the City to request longer sentences” so he could impose sentences that were in between the two, rather than simply exercising his judicial discretion and going above prosecutors’ recommended sentences.

“You have complained that you look like ‘the bad guy’ when you exercise judicial discretion by imposing a sentence above the City’s recommendation,” Holmes and Khandelwal wrote.

Judge McKenna fired back on Thursday with a letter of his own, denying that he made a statement suggesting that he felt bound to follow prosecutors’ recommendations “99 percent of the time.” He did not directly address the other allegation.

The subject of the association breakfast was “System Failure,” a report commissioned by neighborhood and business groups and authored by Scott Lindsay, Seattle’s former public safety adviser. In 2017, Lindsay unsuccessfully tried to unseat Holmes as city attorney; Lindsay ran on a platform that promised to disrupt the criminal justice system’s handling of homelessness, addiction and property crime.

Two years after losing to Holmes, Lindsay’s report looked at 100 repeat, homeless offenders cycling through the King County Jail. His report echoed concerns raised by those neighborhood groups – that prolific criminal offenders who steal to pay for drugs are being released without services or consequences and allowed to re-offend.

During the panel discussion at the breakfast – which included Scott Lindsay and Erin Goodman, SODO Business Improvement Area executive director, as well as Judge McKenna – McKenna praised the report and talked about the difficulty of resolving cases in which the defendants have chemical dependency or mental health problems.

Here’s how Judge McKenna explained the process to the panel moderator, KIRO host Dave Ross:

Dave Ross: So when somebody shoplifts something to sell it for drugs and ends up in your court what typically happens?

Judge McKenna: We, it's really a prosecution-driven system. The prosecutor makes a recommendation to the court. They gather the evidence. They look at the videos, they talk to the witnesses and they negotiate with the defense attorney and basically they say if your client accepts responsibility for, say, this theft, we will recommend X as a sentence. If your client insists on proceeding to trial however, we are going to ask for something different. In other words, more. So, in other words, reward a defendant for accepting responsibility for the actions that they've taken.

Then, Judge McKenna appeared to express concern over decisions made by prosecutors and public defenders for repeat offenders.

Judge McKenna: So what we see now, however, is typically an avoidance of court oversight, so a prime example is just this past week I had a defendant that had been charged with two counts of theft. Two different cases, one from Macy's the other from Target, downtown Seattle. The person had a serious history of drug offenses and thefts on their history. So it was apparent to everyone that the person had a drug problem when apprehended and one of those cases they had two grams of heroin in their pocket and admitted to stealing to support their habit. And the recommendation from the prosecutor was: 'Plead to one of those cases, dismiss the other and impose eight days in jail which the person already served and close the case.' 'Close the case' means there are no services. And I said, 'Isn't this exactly the type of offense that the community is complaining about? What incentive does the defendant have to not reenter that store and what services are we going to impose on this defendant to ensure that they get the treatment they need? So they don't re-offending and then be back here next week.' And the response was, 'Well, he's serving eight days.'

Dave Ross: So it's really is literally zero effort to change behavior then?

Judge McKenna: In many of those prolific offenders there is not a significant effort. On occasion — that was a case where I said I can't follow this recommendation and I imposed treatment. But the problem is, we don't have an inpatient treatment facility that I can immediately order that person into. So the only available inpatient treatment is about 30 days out. So then it becomes an issue as, can I ethically hold that person in custody while I wait for a bed to become available? Or do I release them on the street knowing that they're going to go right back out, steal from a store, put the needle in their arm and be right back in my court? And it's really a difficult dilemma because some people feel it's simply not fair to incarcerate a person because of their addiction.

Dave Ross: OK, so who is driving that policy? I mean who can Erin [Goodman] go to on behalf of her members and say please change this? It's not helping us, this. It's not helping anybody.

Judge McKenna: Well, again, I was a former prosecutor. We had that when I was a prosecutor we looked at prolific offenders. We called it the 'high impact offender project' and persons were on that list and those persons were targeted for additional effort. Judges typically 99 percent of the time will follow the recommendation of the prosecutor. And we rely on the prosecutor because we expect that they are going to make a reasonable recommendation based on the defendant's criminal history of the nature of the offense and the strengths and weaknesses of their case. And so we rarely exceed a prosecutor's recommendation in those cases. And so really it's pretty much a prosecution- driven program.

"The inference is clear," Anita Khandelwal, King County director of the Department of Public Defense, said in a statement sent by email. "He says judges go along with the prosecutor 99 percent of the time, that judges rely on the prosecutor because they expect that they are going to make a reasonable recommendation and that they rarely exceed a prosecutor’s recommendation."

Khandelwal took issue with Judge McKenna's characterization of the court system as a "prosecution-driven program."

"Those comments completely discount the role of the defense counsel, which is one of our most significant concerns," Khandelwal said. "What defense attorney can believe she will be listened to? What person charged with a crime who asks for leniency can believe that her request will be considered?"

Later in the discussion, Judge McKenna suggested that the downtown Seattle jail’s unused west wing could have been repurposed for a court-ordered inpatient treatment facility. But he also said prosecutors would have to be willing to push for that approach.

Judge McKenna: It may not have been the best therapeutic opportunity, but at least it would be something where there would be a warm handoff into an inpatient treatment facility. But it would also take it would take not only judges to order a person into treatment, but a prosecutor to recommend that in their negotiations. So for instance, a prosecutor could say, 'If your client wants to do inpatient treatment, we'll order him into a secure inpatient treatment facility. If he doesn't want to do treatment, we're going to ask for an awful lot more jail. What choice would your client like?'

Dave Ross: Are you hinting that the prosecutor is not inclined to do that even if such a facility existed?

Judge McKenna: I can't speak for the prosecutors.

After sending their letter to Judge McKenna, Holmes and Khandelwal issued a correction on a separate issue. They accused Judge McKenna of inviting a KOMO TV camera and a neighborhood advocate into his courtroom before handing down a predetermined sentence, a claim Judge McKenna has denied. The City Attorney’s office and Department of Public Defense misidentified the advocate’s affiliation. The advocate also said she came to McKenna’s courtroom on her own, not at his invitation.

As of Thursday, Holmes and Khandelwal said they still sought responses to other allegations in their letter.

“He doesn’t dispute pressuring the prosecutor to seek harsher sentences so that he would not look like the ‘bad guy’ when he chooses to exercise his judicial direction,” they said in a statement on Thursday. “He doesn’t dispute making a spectacle of Mr. [Francisco] Calderon’s sentencing. We remain deeply concerned and are evaluating our options.”

Calderon was arrested in November of last year after he was reported mumbling and punching a stranger in the face while walking down the street. Prosecutors and Calderon’s public defender agreed on a plea deal that ordered Calderon to complete mental health and chemical dependency treatment with the rest of his sentence suspended after he had already spent 50 days in jail. Judge McKenna nonetheless sentenced him to 364 days in jail, without court-ordered treatment or supervision after his release.

Judge McKenna called Holmes and Khandelwal’s other allegations "too vague for a detailed reply," but said he would review any hearings or trials that they believed his statements had interfered with if Holmes or Khandelwal supplied more information.

This story has been updated.