Decision by appellate court points to new Wenatchee trial; Police officers accountable

A jury that in 1998 rejected claims of negligence in the now-discredited child sex abuse investigation was improperly barred from hearing key evidence in the case, an appellate court ruled yesterday.

In a hard-hitting decision that paves the way for a new trial, an appellate court in Seattle said the trial judge erred in dismissing claims of negligent investigation against police before the trial went to a jury.

The judge, Spokane County Superior Court Judge Michael Donohue, had ruled that police are not subject to a state law dealing with investigations of child abuse. The law says Department of Social and Health Services employees can be held accountable for negligent child abuse investigations.

In their ruling on a case brought by four people once accused of child abuse, appellate judges Marlin Applewick, H. Joseph Coleman and Mary Kay, Becker said the law covers police officers as well.

"It makes little sense to conclude that one agency owes a duty of care and the other does not when both are conducting investigations required by statute," the judges wrote.

The judges called it "incongruous" to have different standards of conduct for two authorities named in the 1998 lawsuit: Kate Carrow, a state Child Protective Services social worker, and former Wenatchee police Detective Bob Perez.

The judges also said holding law enforcement agencies to a standard of negligence "will encourage careful, thorough investigations, which support the public policy of protecting children from child abuse while at the same time preventing unwarranted interference in the parent-child relationship."

Wenatchee made world news in 1994 and 1995 when police and state asocial workers undertook what was then called the nation's most extensive child sex-abuse investigation. At least 60 adults were arrested on 29,726 charges of child sex-abuse involving 43 children. Many of those accused were poor or disabled.

In 1998 the Post-Intelligencer published "The Power to Harm," a series that documented overzealous - even abusive - actions by Perez and social workers as well as civil rights violations by judges, prosecutors and public defenders. Since then, many of those imprisoned have been freed by higher courts.

In 1998, East Wenatchee Pentecostal pastor Roby Roberson and his wife, Connie, Sunday school teacher Hannah Sims and Donna Rodriguez sought $30 million to $60 million in damages but were awarded nothing. The Robersons and Sims were acquitted of child-rape and molestation charges in 1995. Charges against Rodriguez were dismissed in 1996 when four of her five accusers recanted. All of them argued police violated their civil rights by encouraging children to make accusations against them. Two children who made most of the accusations were foster children in Perez's home.

Defendants in the 1998 trial were the city of Wenatchee, police Chief Kenneth Badgley, Perez, Douglas County, Sheriff Dan LaRoche, Deputies Robin Wagg and David Helvey, the DSHS and Tim Abbey, a CPS supervisor in Wenatchee.

Neither Wenatchee nor its insurer, the Association of Washington Cities, or Douglas County officials were available for comment.

Seattle lawyer Robert Van Siclen,. who represents Roberson and others, said the 1998 lawsuit could have ended differently.

"When the claims of negligent investigation by law enforcement were dismissed, we had to present our case on other theories that had very different standards," he said.

The appellate judges said police generally are immune from charges of negligent investigation, but not in child abuse cases. The Legislature created a "limited exception" when it imposed a "duty" on social workers and police to protect a "specified class" such as children and their parents, the judges said.

Lawyers for Wenatchee and argued that police negligent Claims by probable-cause standards and domestic violence laws, which require arrests if there is reasonable belief a felony occurred.

But the judges said it's possible for an investigation to be "conducted negligently and yield false information which may then be used to support a finding of probable cause." Domestic violence laws are not the same, they said, because they require arrests or follow-up investigations within four hours.

The judges rejected arguments that prosecutorial immunity-would be weakened. Prosecutors cannot be sued if they act as advocates for the people and do not overstep their duties, behaving as investigators.

But when a prosecutor performs the investigative functions normally performed by a detective or police officer, "it is neither appropriate nor justifiable that ... immunity should protect the one and not the other," the judges noted.

Arriving breathless in Olympia last night to support a bill to correct police conflicts-of-interest like those seen in Wenatchee, Roberson said he was thrilled with the ruling.

For Roberson, the appellate court's ruling is a big step toward healing miscarriages of justice - and personal vindication.

"They have been tap-dancing on our caskets," he said.