KENNEWICK — A deputy prosecutor and police detectives committed misconduct by turning over recorded witness interviews to the defense just two days before a child molestation trial, but it doesn’t warrant a dismissal, a judge ruled Tuesday.
Chi Flores’ trial will proceed as scheduled Wednesday, even though there is some prejudice to the defense by the late disclosure, said Judge Cameron Mitchell.
Flores, 39, is charged in Franklin County Superior Court with two counts of first-degree child molestation.
He was a sitting Pasco councilman when the allegations came to light last spring. He lost his seat in the August primary election.
Flores is accused of inappropriately touching a young girl on two separate occasions at his home in 2016.
Deputy Prosecutor Maureen Astley told the court it was only during trial preparation late Monday morning that she discovered there were police interviews with the girl’s parents from May 5.
There is no reference to those interviews in any reports, she said.
Astley immediately got copies of the recordings from the Pasco Police Department and drove them to the Richland office of defense attorney Scott Johnson.
“As soon as I learned of the interviews, I provided them,” she said, acknowledging that it was just 1 1/2 days before they were to start jury selection.
There was no malicious intent in the discovery process since the state did not previously know about this information, Astley said. Therefore, a dismissal would be “an extraordinary remedy” and should only be granted as the last resort, she said.
Johnson had moved for the case to be dismissed based on government misconduct. He said even though he doesn’t believe Astley did anything wrong herself, case law says the conduct of the police department is imputed to her because she is representing the state.
Johnson had not yet reviewed the two CDs, adding that he was at a disadvantage because the complaining victim’s parents are important witnesses to the prosecution and he has no more time to investigate before trial.
Judge Mitchell said a trial continuance was the appropriate remedy for the misconduct finding, even though it would prejudice Flores’ right to a speedy trial and further affect his financial situation.
The defense said Flores has been on leave from his job without pay since he was charged.
Johnson replied that his client “can’t have his life on hold any longer” and asked the judge to suppress any testimony or evidence from the parents in trial.
But when Mitchell stuck to his earlier ruling to postpone trial, Johnson said they would go to trial as scheduled, but put on the record that he is unprepared and will be ineffective given the late evidence.
Mitchell also ruled that any statements made by the complaining victim cannot be used by Astley in trial because she did not follow criminal rules and give the defense five days notice before a hearing on the issue.
That means Astley must rely on the girl’s live testimony, since anything she said to police, her family or a school counselor were not admitted.
Astley told the court she may seek a discretionary review by the state Court of Appeals on that ruling, which could put the case on hold for months. She later decided not to go forward with the appeal.
Mitchell ordered the courtroom closed and the record temporarily sealed later Tuesday while Astley presented potential character evidence she wants to put before the jury. One witness was a woman who traveled from Montana, where Flores used to live.
The Herald objected to the closure and sealing, pointing out that open access to the courts is presumed in Washington.
Mitchell said he had to balance the public’s right to know with Flores’ right to a fair trial, and allowing information to be made public about the defendant’s past that hasn’t yet been admitted may taint the available jury pool.
