State bar recommends disciplinary hearing for Lindquist over murder-trial TV appearance

Pierce County Prosecutor Mark Lindquist faces a possible disciplinary hearing that could lead to the suspension of his license to practice law and threaten his ability to continue to serve in elected office.

The Sept. 8 recommendation from the Washington State Bar Association’s Office of Disciplinary Counsel qualifies as one of the biggest bombshells in Lindquist’s turbulent seven years in office: a rare case of the bar association considering sanctions against an elected prosecutor.

It stems from Lindquist's ill-fated appearance on the Nancy Grace legal talk show in February 2016 during the climax of a widely watched murder trial. During his appearance, Lindquist speculated about the motives of defendant Skylar Nemetz, saying among other things that his actions "add up to murder."

Asked for comment by The News Tribune on Thursday, Lindquist didn’t address the bar association letter directly. He replied with a general statement via email.

“I've stayed focused on keeping our community safe, protecting elders, locking up career criminals, and blocking the release of violent offenders from state facilities into our county,” he said.

Lindquist referred specific questions to Seattle lawyer Steven Fogg, who will represent him in what is likely to be a long-running process.

“It’s unfortunate that this was leaked,” Fogg said. “We’ve had a series of politically motivated bar complaints filed by a single grievant. The process is in its infancy. I will say that there is zero chance of a suspension coming out of this.”

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The bar association's letter, obtained by The News Tribune this week, notes that deputy prosecutors Greg Greer and Jared Ausserer advised Lindquist not to appear on the Nancy Grace show. So did Heather Songer, a 29-year-old assistant hired by Lindquist to handle media relations. All three were interviewed by bar investigators.

“Everyone else who knew of the proposed second interview — DPA Greer, DPA Ausserer and Ms. Songer — thought it was a bad idea and strongly opposed it,” the letter states. “Their concerns were conveyed to PA Lindquist, but he wanted to do the interview anyway.”

The News Tribune covered the trial closely. The case and its TV-friendly elements also drew national media attention from CBS and other news outlets.

Skylar Nemetz had been accused of shooting his young wife, Danielle Nemetz, in the back of the head as she sat at her computer in the couple’s Lakewood apartment in 2014. Skylar claimed the shooting was accidental. Ultimately, he was found guilty of first-degree manslaughter.

Lindquist’s unexpected appearance on the Nancy Grace show infuriated Michael Stewart, the attorney defending Nemetz. He had rejected an interview request from Grace’s producers and did not know Lindquist had agreed to appear. (Stewart declined to comment for this story, though he is aware of the bar complaint.)

Learning of the broadcast, Stewart promptly moved for a mistrial. The motion was denied by Superior Court Judge Jack Nevin, who had also seen the Grace broadcast while on vacation in Arizona. Nevin found no evidence that jurors had seen the broadcast.

The bar association letter suggests that Lindquist’s appearance on the show might have violated rules of professional conduct governing public statements about criminal defendants, as well as a rule that prohibits “conduct that is prejudicial to the administration of justice.” The letter considers the potential consequences if such violations are upheld by a hearing and subsequent ruling.

“The presumptive sanction appears to be suspension,” the letter states.

The letter also notes that Nevin’s decision regarding a mistrial isn’t a decisive factor in determining whether Lindquist’s statements violated rules: “The statements must be viewed in the context in which they are made at the time they are made, not in hindsight.”

The bar complaint linked to the Nancy Grace appearance is one of 11 filed against Lindquist and seven current and former staffers since 2014.

Many of the complaints cited Lindquist’s publicity-seeking and other alleged acts of misconduct. Most were dismissed in the past year. Taxpayers have underwritten the costs tied to fees for outside lawyers defending Lindquist and his staffers. Those bills now exceed $248,000, according to the latest figures from the county’s risk management division.

Fogg, the attorney defending Lindquist, called the complaints politically motivated, noting that they have been leaked to the media, though such materials are confidential.

“All of these bar complaints save one have failed to pass the screening stage,” he said.

Bar association rules govern all lawyers. They limit the ability of prosecutors to discuss the potential guilt of defendants outside the courtroom in order to protect fair trials. The rules specifically warn against statements “that have a substantial likelihood of heightening public condemnation of the accused,” especially when jurors can be exposed to them outside the courtroom.

Most bar complaints end in dismissals with no consequence for the lawyer. Discipline is rare, and discipline against prosecutors is rarer.

According to statistics compiled by the bar association, 70 of the state’s 31,549 licensed lawyers received some form of discipline in 2016, ranging from admonitions and reprimands (the lowest forms) to suspension and disbarment (the highest forms).

Only one of those lawyers was a prosecutor: former Grant County Prosecutor Angus Lee received a reprimand from the bar association linked to actions taken in 2009. Lee lost his campaign for re-election in 2014.

The bar association letter to Lindquist is the beginning of the process, not the end. In keeping with standard procedure, it recommends a hearing rather than setting one, leaving the decision in the hands of a review committee which wields broad authority.

The committee could proceed with the hearing, request more investigation, or dismiss the complaint entirely. The decision could take several months and branch into multiple appeal-style arguments. Final decisions regarding sanctions, if recommended, rest with the state Supreme Court.

In confidential responses to the current bar investigation, Lindquist defended his statements on the show by saying they were drawn from the public record of the case and charging papers.

The bar association’s letter acknowledges that prosecutors enjoy a “safe harbor” for statements drawn from the public record, but it adds that Lindquist’s statements moved beyond that sphere into editorializing and opinions about the defendant’s credibility and the quality of his defense.

During his two appearances with Nancy Grace, Lindquist speculated about Nemetz’s motives, saying, “The motive in this case was jealousy.” He added that “the defendant’s experience with firearms is critical to the case” and challenged the idea that the shooting was an accident.

Those and other statements reflected Lindquist’s “personal assessment of the evidence and his opinion as to the guilt or innocence of the defendant,” the letter states.

Grace’s show was canceled last year after more than a decade on the air. Critics in the media and legal community often assailed her aggressive coverage, which relied on presumptions of guilt and mockery of defendants. During her broadcast on the Nemetz trial she rubbed her eyes in a derisive imitation of his tearful testimony, saying “wah, wah, wah.”

The News Tribune’s coverage of the trial also described a confrontation between Lindquist and a CBS producer who questioned his decision to appear on the Grace show in the midst of the trial. Lindquist reportedly replied that it was the best time to discuss the case, and added, “You’re just jealous of Nancy Grace.”

Citing interviews with Greer, Ausserer and Songer, the letter states that both deputy prosecutors “strongly opposed” Lindquist’s appearance on the show, fearing it would prejudice the trial. Songer conveyed the opinions to Lindquist, who asked to speak to Ausserer.

The letter states that Ausserer repeated his concerns, but “less forcefully” than he had when the boss wasn’t present. (Ausserer also told The News Tribune last year that he did not advise Lindquist “one way or the other.”)

A few weeks after the Nemetz trial, Lindquist fired Songer, telling others he wanted someone who would be more aggressive about media relations.

The Grace appearance led to negative media coverage for Lindquist, including a snippet on Fox News. A pair of legal commentators described the appearance as “not smart.”

A News Tribune editorial also questioned the wisdom of the decision. Lindquist told an editorial writer he wasn't familiar with the format of Grace's show, though he had appeared on it more than a year earlier to discuss the Nemetz trial. A producer from the show emailed one of his assistants after that appearance, saying, "Nancy loved Mark!"

Assessing possible sanctions such as license suspension, the bar association letter cites Lindquist’s long experience as a lawyer as an aggravating factor, implying that he should have known better than to appear on the show.

“It appears that PA Lindquist had conscious awareness of all relevant attendant circumstances, including the substantial risks involved in making an appearance on Nancy Grace while the trial was ongoing,” the letter states.

Fogg, the attorney representing Lindquist, voiced confidence about the process and predicted victory.

“We look forward to providing further information to the review committee,” he said. “Prosecutor Lindquist has an obligation to explain his charging decision and to explain the actions of his office to the public. He did that here in a manner no different than prosecutors have explained themselves to the public through the media literally for decades. He played by the rules here.”

The prospect of a hearing is a long way off, with many legal hurdles to clear before it becomes a certainty, the first being Oct. 9, the deadline for Lindquist to file his first reply.

However, the initial letter outlines a “presumptive sanction” of a license suspension, which can last up to a maximum of three years, according to the bar’s legal rules.

John Strait, a Seattle University law professor who specializes in legal ethics, said a license suspension could threaten Lindquist’s ability to serve in office.

“A suspended, elected prosecutor, if the sanction is so severe, probably can’t continue in the office,” Strait said. “It depends on how long the suspension is and exactly what it’s for. When you get suspended as an elected prosecutor, it’s a big deal. You cannot practice law.”

Cox Media Group