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News / Northwest

No charges over former Seattle Mayor Durkan’s deleted texts, prosecutors say

By Mike Carter, The Seattle Times
Published: September 13, 2023, 10:16am

King County prosecutors announced Tuesday that they will not file criminal charges against former and current Seattle executives for deleting tens of thousands of text messages during the Black Lives Matter protests of summer 2020.

The decision comes a year after former Prosecuting Attorney Dan Satterberg ordered the King County Sheriff’s Office to investigate the deletions, which came to light in 2021 when a whistleblower revealed then-Mayor Jenny Durkan’s texts from a 10-month period were missing.

Prosecuting Attorney Leesa Manion, who inherited the case from Satterberg, on Tuesday issued a memorandum — supported by several hundred pages of documents — outlining the office’s legal analysis and concluding “there is no legal basis to file criminal charges in this case.”

The investigation amounted to a review of thousands of pages of legal documents and hundreds of hours of sworn depositions, mostly stemming from a civil lawsuit filed by Capitol Hill businesses that claimed the city was responsible for damages they sustained during the three-week Capitol Hill Organized Protest (CHOP) during summer 2020.

Manion said King County Sheriff’s Office investigators werse “not able to develop sufficient evidence” to justify a criminal investigation that would involve in-person interviews and the pursuit of additional evidence.

Dan Clark, a chief criminal deputy, said the office concluded Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and a number of other city and police employees were working under a “reasonable but mistaken belief” that the city of Seattle stored copies of text messages in the virtual cloud, as it does with emails.

Moreover, some employees repeatedly did hard resets of their phones after they forgot their passwords, which the city required them to change frequently.

King County sheriff’s detective Joe Gagliardi, who headed the review, said he found a number of instances where employees would change a password and then immediately revert to using facial or fingerprint recognition. By the time the next change came around, they had forgotten the password and would simply reset the phone, losing text messages.

Gagliardi reviewed instances of missing texts involving a total of nine former and current city officials, comparing their actions to two potential felony violations: “Injury to a Public Record,” a class C felony, and “Injury and Misappropriation of Record,” a 1909 statute that is a class B felony. There was insufficient evidence to prove either using the criminal “beyond a reasonable doubt” burden.

The first statute requires prosecutors to prove the individual “willfully and unlawfully” deleted texts. The second statute is so broadly written that Manion believes prosecutors would still need to prove criminal intent. She said her office doesn’t have the evidence to do so and doesn’t believe it can be developed.

“In sum, the state cannot establish beyond a reasonable doubt that any of these City of Seattle employees had a criminal intent to destroy public records,” the prosecutor concluded.

“There was no single factor that led to the destruction of the text messages belonging to the high-level city officials during this four-month period,” the office’s memo states. “Rather, it was a perfect storm of training delinquencies, outdated and conflicting policies and procedures, and insufficient safeguards to prevent the loss of records that primarily contributed to the destruction of these text messages.”

Durkan, whose actions during that summer have been the topic of lawsuits and widespread criticism, welcomed the conclusion.

“This result was the only one supported by the truth,” she said through a spokesperson Tuesday, thanking the Sheriff’s Office for dedicating “significant resources and its best personnel to fully review this matter, despite being very short-staffed and facing multiple crises, including gun violence and fentanyl in the county.”

The review concluded the settings on Durkan’s phone were changed at some point from “keep messages forever” to “keep messages: 30 days,” resulting in a rolling loss of data. Durkan had just received a new phone, the detective noted, and for a period the changes could have been made on either phone. The report notes that a number of people had access to the phone during that time.

Best, the former police chief, retired from the Seattle Police Department in August 2020 and returned her department-issued phone Sept. 2 of that year. Several months later, a city information technology official found just 17 texts on the phone and that Best had manually deleted thousands of messages. According to Gagliardi, Best’s sworn testimony and other evidence indicates she mistakenly believed her text messages were being stored in the cloud, when in fact they weren’t.

Moreover, the city says its employees can delete “transitory” text messages, without really saying what those entail, Garliardi pointed out.

Records showed the former chief deleted 27,000 text messages by hand.

“If Best was under the misimpression that she was deleting only a copy of a public record and not the original, it cannot be proven beyond a reasonable doubt that she was acting willfully or unlawfully to alter an actual public record,” the memorandum said.

Scoggins, who remains in his role, was one of the individuals who forgot his passcode and had to do a “hard reset” that deleted the data, according to the memo.

“Scoggins was not technically proficient and only used his phone primarily as a telephone and for its calendar function,” according to the memo.

Manion defended her decision to keep the investigation in-house, though she acknowledged she knows Durkan and Best — the latter of whom provided a quote for Manion’s campaign. She said she opted to keep the case, rather than farming it to an outside prosecutor, because it involved an issue of the “utmost importance” for Seattle residents.

She did, however, say the case was reviewed by a prosecutor unacquainted with any of the involved officials.

The missing messages included those from early summer 2020, when police deployed tear gas against protest crowds and abandoned their East Precinct during CHOP.

A number of Capitol Hill businesses sued the city afterward, claiming officials had failed to protect them and contributed to financial losses and vandalism that occurred during the protests.

A federal judge sanctioned the city for the deletions and questioned the credibility of Durkan and others who claimed the deletions resulted from accidents and improper, if innocent, settings on the devices.

The lawsuit was eventually settled for $3.65 million, including $600,000 in sanctions for the deleted texts. The judge found significant evidence that the deletions were intentional and that officials tried for months to hide them from opposing attorneys.

The missing texts and the controversy surrounding them also led The Seattle Times to sue the city in 2021, alleging violations of state public records laws.

The city ended up paying $200,000 the following year to settle the lawsuit — which revealed there were more missing texts than had been previously known — and implemented new public disclosure policies as a result.

As part of the settlement, the city agreed to program all city phones to retain text messages.

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