Top city prosecutor and county public defender speak out about judge concerns

SEATTLE - Two sides of the judicial spectrum are speaking out against a Seattle Municipal Court judge, who they claim is acting unethical on the bench.

It is  extremely rare when public defender Anita Khandelwal and Seattle City Attorney Pete Holmes come together.

“We are adversaries. But one of our shared values is in the integrity of the system. And the integrity of judges, and seeing them follow their duty to the impartial. And we have grave concerns,” said Khandelwal.

According to Khandelwal, the concern has to do with the sentencing of repeat offenders by Seattle Municipal Court Judge Ed McKenna. A day after both attorneys sent a letter to McKenna expressing their concern, they spoke out clarifying the letter’s intent.

“The point of this letter is, how should a sitting judge behave and is that sitting judge behaving in a way that is impartial? Is he following the canons of judicial ethics?" said Khandelwal.

Both have expressed concern that McKenna is pressuring prosecutors for tougher sentences instead of fair ones.

“Keeping on charges. Asking for maximum sentences, when you know that’s not appropriate. It’s not what’s going to be imposed. And the fact that the judge wants to 'split the baby,' if you will, is really reducing our criminal justice system to a bidding platform,” said Holmes.

In the letter sent to McKenna, it stated that on April 19, 2019, McKenna spoke at the Downtown Seattle Association’s City Maker breakfast. The letter said McKenna suggested that he felt bound “to follow prosecutors’ recommendations 99-percent of the time.” The letter also suggests that McKenna has spoken to several prosecutors about imposing longer sentences for repeat offenders.

Read the full letter from the prosecutor, public defender here

The issue for both Khandalwal and Holmes is that doesn’t constitute justice.

“Having private conversations with the prosecutor about asking for more time, publicly stating that he’s following the prosecutors recommendation in 99-percent of the cases, as if the defense advocacy doesn’t matter, as if he’s disregarding the statements that a defendant makes in front of him at sentencing. Those are all huge problems,” said Khandelwal.

One case has garnered the attention of both Khandalwal and Holmes. It’s the case against repeat offender Francisco Calderon. Calderon has been convicted for dozens of repeat crimes. But on Jan. 10, Calderon was sentenced by McKenna for 364 days in jail, when prosecutors and defense attorneys had been asking for Calderon to enter treatment with “balance of the sentence suspended,” per the letter sent to McKenna.

According to Holmes, the system is not designed for addressing a criminal’s underlying conduct. During an interview on Wednesday, Holmes said part of the problem is that many criminals with underlying mental or substance issues, for example, just don’t have the “world view” of rational people.

“And now we want to project our view of the world, our rational view onto people with mental health difficulties, with chemical addictions and then wonder why a stiff sentence hasn’t deterred conduct,” said Holmes. “The reason that they’re cycling in and out of the system is because the system either has inadequate resources or was never designed to deal with mental health issues, with poverty, with institutional racism frankly.”

Khandalwal, who defends many repeat offenders, said during Calderon’s sentencing it was peculiar when a TV reporter and a member of “Speak Out Seattle” were in the courtroom. It appeared that the judge wanted to make a public spectacle, instead of being a fair and impartial judge, said Khandelwal.

“It’s hard not to believe that that wasn’t playing to the camera. It wasn’t taking into account the advocacy of the parties, and what was right for the parities, and right for the community,” she said.

Judge McKenna has been forthcoming on stopping the cycle too. He spoke with Q13’s Hana Kim on the issue.

“Releasing them back on the street is really not the answer. We see the impact on the community. But we really don`t have anywhere to put them. We know they`re going to cycle back through our programs,” said McKenna during the interview in February.

It’s an argument both agree on. However, Khandelwal and Holmes said this is about being an impartial judge.

“And that means you go into court, and as an officer of the court, you recommend what you think is the appropriate sentence, not the maximum sentence,” said Holmes.

Both Khandelwal and Holmes said in the letter to McKenna, “We request that you either comport yourself in a way that conforms with the Canons of Judicial Conduct or that you recuse yourself in all criminal matters.”

Judge McKenna responded with a letter of his own toward Khandelwal and Holmes.

Read the full response issued by the judge here

Part of it stated: “I am declining your suggestion to step aside as Seattle Municipal Court Judge. I was elected to this position by my peers and enjoy continued support from the bench."

McKenna also offered an ‘olive branch’ to Khandelwal and Holmes stating: “Bench/Bar meetings provide an opportunity to raise and discuss issues impacting the justice system. I hope we can work together as professionals in the best interests of those we serve.”

In regards to the suggestion that McKenna listens to prosecutorial recommendations more than 90 percent of the time, McKenna wrote: “I deny making a statement suggesting that I personally felt ‘bound to follow the prosecutor’s recommendation’s 99 percent of the time. Further, the record does not support any suggestion or inference that I disregard the advocacy of defense council.”

About the inference that McKenna ‘invited’ a member of the media and a public advocate, he wrote: “I categorically deny your allegations that I have violated the Cannons of Judicial Conduct….Both individuals you reference have publicly denied any invitation on my part to observe the case or any form of sentencing collusion as you infer.”

According to Holmes, he said he  that he has spoken to Judge McKenna in private to stop his conduct.

But he says it continued. Both him and Khandelwal said they hope the judge hears them now.

“We stopped short of filing a formal complaint. We have not asked him to resign from the court altogether. My hope is that he heard the message this time,” said Holmes.