Chapter 12

• Jurisdiction: United States

Chapter 12 Innocence Projects

Defendant and Expert Witness

A prosecutor's role is to do justice, and that means making sure the innocent do not suffer. Prosecutors should be leaders of innocence projects.

During mass on Sunday, December 19, 1982, a fire was started in Christmas decorations in the basement of the Immaculate Conception Church, the oldest Roman Catholic church in Seattle at that time. The fire resulted in a fireball that caught twenty-three-year-old Jean Marie Moran, a Seattle District Court clerk, as she was exiting the church. Moran died on January 2, 1982. The fire also caused extensive damage to the church. The Seattle Fire Department suspected arson and opened an investigation.

Dennis Fowler, a Seattle Fire Department investigator, presented a case to the office alleging that George Nicholas Dever had committed arson and the manslaughter of Moran. Dever, a fifty-four-year-old optometrist, served on the parish council and sang in the church choir.

Dever was one of the two people who reported the blaze to 911 when it broke out. In a brief telephone conversation with a 911 operator, Dever said the fire had started in some straw or hay that had been part of a crib scene in the church basement.

When the high-profile case was presented to our office, I told the deputy prosecuting attorney handling the case to draft a certificate of probable cause, which is a document that lays out the facts of the case and supports the charging document, called an "Information." However, I specifically told the deputy prosecutor that I did not want charges filed and that I wanted to review Dever's case before any charges were filed. The deputy prepared the certificate of probable cause, but it ended up in the hands of another deputy prosecutor who, on June 14, 1984, filed first-degree arson and first-degree manslaughter charges against Dever.

After criminal charges were filed against Dever, his attorneys, David Allen and Richard Hansen, conducted an independent investigation and submitted several witness statements to me for review. The statements indicated that Dever was in the choir box when the fire broke out. Therefore, I moved to have the charges against Dever dismissed, and they were dismissed on July 24, 1984.

Upon learning that charges had been dismissed, David Allen indicated that he was thrilled that they had been dropped. However, he said, "The damage to Mr. Dever can never be repaired. It's truly been a nightmare for the man. He spent countless sleepless nights over this." Hansen, Dever's other lawyer, went on to say, "It was the sloppiest investigation I've seen in eleven years of law practice. I think he should be compensated for this."

I explained to the media that the new evidence that the Dever's lawyers provided changed "the whole posture of the case," and that a jury would not be justified in convicting Dever. I said, "Since the filing of the charges in this case, witnesses have been identified who state that Mr. Dever was in the choir box prior to and when the congregation was alerted to the fire." I further explained that witnesses corroborated Dever's account of his actions before and after the fire.

By moving to dismiss charges against Mr. Dever, I did not endear myself to the deputy prosecutor who filed the charges. At that time, another deputy prosecutor had told me that the filing deputy was in bed with the Seattle Fire Department investigator Fowler. I thought he was speaking figuratively.

On May 6, 1985, Dever filed his civil action against Fowler and others, including me. He alleged civil rights violations, malicious prosecution, and negligent investigation. Dever's counsel who had been defense counsel in unrelated cases I had tried, deposed me for about a day. When the case eventually went to trial, I had gone from a defendant to a plaintiff's witness.

At trial, Fowler testified that he gave Dever's file to the prosecuting attorney's office just before the charges were filed to have it looked over, but that he (Dever) did not want charges to be filed at that point. I testified that instead of just asking for it to be looked over, Fowler advocated for filing charges against Dever. It was a delightful experience when plaintiff's counsel asked me an open-ended question on direct examination about what I thought about charging Dever. It allowed me to fully explain to the jury why the evidence didn't support charging him.

Another of Dever's expert witnesses was Dave Boerner, then a professor at the University of Puget Sound Law School and who had been my former boss and mentor. Dave testified that probable cause to charge Dever would not have existed "unless all other suspects were eliminated and only Dever knew the fire originated in the straw." I would needle Dave about how he got paid an expert fee and I got no remuneration. I would never again be either a defendant or an expert witness.

On October 19, 1988, the jury returned a verdict in favor of Fowler on the civil rights and malicious prosecution claims, but the jury was unable to reach a decision on the negligent investigation claim, which the trial court dismissed.

Dever appealed to the Washington State Court of Appeals.⁶¹ The appeals court reversed the trial court and remanded for a new trial on Dever's malicious prosecution...