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Sept. 25, 2021

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Clark County judge apologizes for Kevin Peterson Jr. comments, will take time off

Judge Darvin Zimmerman had been critical of man killed by sheriff’s deputies

By , Columbian Breaking News Reporter, and
, Columbian Assistant Metro Editor
Published:

Clark County District Court Judge Darvin Zimmerman issued a statement Tuesday saying he’s decided to take time off to reflect on comments he made last week critical of a Black man killed in a police shooting in Hazel Dell.

Zimmerman’s earlier comments, inadvertently captured on video and broadcast online, have prompted condemnations from his fellow District Court judges, a decision by prosecutors to seek his removal from all of their criminal cases and a call from a prominent law firm for him to resign.

“I have always prided myself in being open minded, fair and just in my duties as a judicial officer. I do understand that even my personal comments, when made public, bring about an outcry of concern because I am a judicial officer,” Zimmerman said in a statement issued on his behalf by attorney Josephine C. Townsend.

The statement said Zimmerman deeply regrets his comments that have caused divisiveness and concern in the community.

“I am very sorry for that. I have decided to take some time off to reflect on my behavior and to determine what I can do to help heal the community I have served,” it said.

More on Zimmerman

Judge Darvin Zimmerman presides over Mental Health Court in 2010. Zimmerman has been a judge in Clark County for more than 20 years. Clark County judge apologizes for Kevin Peterson Jr. comments, will take time off
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Tammi Bell answers questions about the killing of her son, Kevin Peterson, Jr., by police in Clark County, during a press conference at the Aero Club Banquet Room in Vancouver on Thursday morning, March 18, 2021. Peterson’s parents call Zimmerman’s remarks ‘slap in the face’
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Townsend, who’s representing Zimmerman, said that over the weekend he self-reported his statements to the Commission on Judicial Conduct, which has the power to investigate his comments and take action, including recommending the Washington Supreme Court take action against him.

“We decided it would be best to be as proactive as possible in responding,” she told The Columbian in a phone interview. She added that Zimmerman will fully cooperate with the investigation.

Townsend said Zimmerman’s case is on the commission’s schedule, which meets every two months. The next meeting is April 23, she said. However, she was unsure if he self-reported in time for that meeting or if it will be addressed in June. Townsend said the commission will review any complaints filed against Zimmerman, as well as the video recording of his comments, and interview him.

“I want my colleagues and the public to know that I have accepted responsibility for my actions,” Zimmerman’s statement said.

Confidential process

Judges are elected by voters, but there are ways for them to be removed from office. One requires a joint resolution of the Legislature, in which three-fourths of the members of each chamber concur. The other requires a decision by the Washington Supreme Court based on a recommendation from the judicial conduct commission, which is charged with investigating complaints of judicial misconduct or disability and can recommend that a judge be suspended, removed or retired.

Reiko Callner, executive director of the judicial conduct commission, said the state’s Constitution does not permit her agency to disclose whether it’s received any complaints about Zimmerman. The process is entirely confidential while investigations are pending, but the law requires a public release of information after an offense has been charged and adjudicated.

“Part of the reason for the confidentiality is protection against concerns about backlash for filing a complaint. We don’t disclose the name or the identity of the complainant, or even the fact that there is a complaint filed. And in that way, it encourages witnesses and complainants to be willing to come forward and talk to the commission,” Callner said.

The majority of complaints filed against judges — which can come from any source whatsoever, even a person unrelated to the subject matter of a complaint — are dismissed, Callner said. Many complaints come from litigants who went to court and lost their case; they typically argue the judge was incompetent, made up their mind ahead of time or showed bias, she said.

“Virtually, all judges in the state have been the subject of investigation, because they’ve had complaints filed against them,” Callner said.

Speaking generally about accusations of bias or racism from a judge, Callner said all judges are required to adhere to the four canons laid out in the state’s Code of Judicial Conduct. Each canon, a kind of “sacred language important to maintaining the justice system,” contains multiple rules. Several of those rules could apply in an issue involving manifestations of racism or bias, she said.

Callner said the complaint process can be slow-moving, as the commission investigates, decides whether to move forward with a statement of allegations and then gives the accused judge a chance to respond.

Judge goes on leave

In the meantime, Zimmerman’s leave from the bench will be coordinated through District Court’s presiding judge, Kelli Osler, Townsend said.

Osler said in an email Tuesday that the court has, for the near foreseeable future, reassigned Zimmerman’s cases. It’s possible multiple judges may be handling the caseload in his absence, she said. The court has six judges, including Zimmerman, and two court commissioners.

Zimmerman, whose comments with another court official were captured on video and viewable on YouTube for several hours, described Kevin Peterson Jr. as “the Black guy they were trying to make an angel out of,” and said he believed Peterson had a death wish and “was so dumb.”

The long-serving judge, whose son was on scene in the Oct. 29 shooting as a member of the Clark County Sheriff’s Office but did not fire his weapon, also claimed that Peterson’s father conceded to a police chaplain that the shooting was justified but, “the next day, he wakes up with dollar signs in his eyes and George Floyd’s attorneys had already contacted him.”

Zimmerman said his private remarks in the courtroom were him speaking as a father about his concerns over the five-month delay for the Peterson investigation to be completed, of a need for closure about the 21-year-old Black man’s death, and the necessity for investigative information to be released publicly, “so that everyone, including the police get a fair evaluation of what happened.”

He said his concerns as a father do not excuse the fact that the comments caused an already volatile community to again become divisive.

He noted his 35-year career on the bench, stating that he’s long been a supporter of therapeutic programs that help the impoverished. He said he’s promoted the Veteran’s Court and Mental Health Court programs. Townsend said he was on a committee to bring in a pre-arrest diversion program.

“I am a staunch supporter of programs that provide alternatives to incarceration, which affect people of color and the impoverished,” Zimmerman said.

He said the programs mentioned in his statement are meant to bring fair and equal justice to all races and genders.

Townsend said that Zimmerman has spoken at many conferences and brought millions of dollars into the county to fund therapeutic programs. He has also helped refer litigants wanting to learn English to a Clark College program.

“He doesn’t want the public to think that’s the only version of him, because it isn’t,” Townsend said, referring to Zimmerman’s recorded comments. “It’s the other side of the version of him. To speak as an exasperated father, to want closure to an investigation that has taken a long time, it wasn’t appropriate, he understands that; but at the same time, it’s not the only version of him. He just wants that level of fairness as well.”

Who’s speaking out

Northwest Justice Project attorney Tim Murphy said Monday that he is concerned about Zimmerman’s comments and other issues he’s experienced with the judge.

Murphy said Zimmerman’s comments showed he’d already decided the police were justified, as he repeatedly stated that Peterson was at fault for getting shot and vindicated the officers involved in the shooting. Murphy believes these remarks clearly signaled a bias and lack of impartiality, a violation of judicial conduct Rule 1.2.

The attorney also noted that over the years, his clients who appeared before Zimmerman were repeatedly, unnecessarily questioned about their need for a translator.

“He would ask them, ‘Do you speak English? Do you really need an interpreter? What country are you from?’ All these things that are just completely inappropriate and not relevant to the proceeding. There are rules about defendants not having to answer those types of questions, because depending on their situation, it might incriminate them,” Murphy said.

Murphy encouraged others in the county’s criminal justice community to speak out about issues with Zimmerman, arguing silence was a scathing indictment of a local bench that’s unwilling to hold officials accountable.

“We’ve seen the video and heard his comments, but (attorneys) aren’t going to talk about it publicly and be willing to put their name on it. To me, that says a lot about our bar, and it shows how deeply embedded issues of racism are; you can’t even get people to talk about it,” Murphy said.

No other attorneys or officials responded to The Columbian about whether they’d file a complaint against Zimmerman.

Attorney Christie Emrich — who leads Vancouver Defenders, which called for Zimmerman’s resignation Monday — said as officers of the court, attorneys cannot and should not disclose whether they’ve filed judicial complaints, citing the commission’s rules of confidentiality.

Zimmerman’s comments drew criticism from other groups, including the Vancouver city attorney, members of the Vancouver City Council and the League of Women Voters of Clark County.

Columbian Breaking News Reporter
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