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Wednesday, July 8, 2020

New legal precedent leads to retrial for Whatcom County felon

By Schuyler Shelloner

The Washington State Supreme Court set a new legal precedent when the court ordered a retrial for Whatcom County resident Sassen Van Elsloo. The split-decision ruling found the removal of an impaneled juror, known as Juror 12, in Van Elsloo’s 2014 criminal trial to be in error.

The Supreme Court decided that familiarity with a witness is insufficient grounds for dismissing a juror, even if the juror could be biased as a result.

Whatcom Prosecutor candidate Eric Richey, who had served on the prosecution team in Van Elsloo’s 2014 trial, made the request to dismiss Juror 12. Richey requested Juror 12’s dismissal because Juror 12 said she recognized key defense witness Sharon Burton.  

“Regardless of Juror 12’s feelings about Burton, a biased opinion alone is not sufficient to dismiss the juror for actual bias. The juror must be unable to try the case impartially due to the biased opinion,” Justice Charles Wiggins wrote in the lead opinion.

Since Juror 12 repeatedly asserted under questioning that she did not have positive or negative feelings toward Burton, the prosecution could not prove the juror was actually biased.

Juror 12 was the only member of the Lummi Nation sitting on the jury at the time of her dismissal. While she claimed not to harbor positive or negative feelings towards Burton, she did admit under questioning that she had positive feelings for her tribe and her community. Justice Sheryl McCloud inferred from the court record that the prosecution requested Juror 12’s removal because of her tribal affiliation.

“It is impermissible to make such unsupported assumptions about whether a person will fairly and impartially discharge their civic duty based on their status as an Indian,” McCloud wrote in a concurring opinion.

Richey prosecuted Van Elsloo in the initial 2014 trial. Richey couldn’t be reached for comment because of continuing involvement with the case, but he did say in a debate with opposition candidate James Erb on Oct. 3 that Juror 12’s tribal affiliation did not motivate him to seek her dismissal.  

“I asked that the juror be removed because the juror knew a witness,” Richey said. “I think any trial attorney would do that. It had nothing to do with race, it had nothing to with anything other than knowing the witness.”

Justice Debra Stephens wrote that the defense failed to prove prejudice had played a factor in the juror’s removal. Stephens, who wrote the dissenting opinion, said the trial court’s erroneous removal of a juror doesn’t necessarily negate the defendant’s right to a fair trial by jury. The defense must prove that the removal was prejudicial, and since the defense didn’t prove prejudice, Van Elsloo should not be entitled to a retrial, Stephens wrote.

The real injustice, according to James Erb, who is also running for Whatcom prosecutor, is that Van Elsloo has received a retrial at all.

“The problem here is not just the implicit bias that the justices inferred from the record,” Erb said. “There is a notoriously dangerous criminal who was convicted of these crimes and sentenced to over 20 years in a Washington state prison who will now have to come back to our community to be tried again, at great cost to the taxpayers, with an uncertain outcome, because of a mistake that should never have been made by a trial attorney with more than 20 years of experience.”

Van Elsloo will be retried for nine felony counts, five of which carry firearm endorsements. Van Elsloo has previously been convicted of various felonies, one of which resulted in the death of Whatcom County Sheriff’s Deputy Matt Herzog in 2001.

1 COMMENT

  1. I went and looked it up and it appears that lawyers online are about evenly divided about whether knowing a witness at all could be grounds for removal for cause. But it reflects poorly on Richey that he was willing to use her status as a member of Lummi nation to impeach her impartiality. That shows he knew he needed a case for removal and didn’t have one. Having positive feelings about one’s community can’t be translated into a bias for of every individual in the community.

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