What is so tragic about this case is that it is very likely the alleged child sexual assault victims will be forced to go to trial again, as all charges were reversed due to something that appears not to have been necessary. Mr. Lester had confessed to a crisis counselor that he had molested his two stepchildren.
Mr. Lester waived his right to a jury and opted for a bench trial on four counts: rape of a child in the first degree, child molestation in the first degree, incest in the first degree, and incest in the second degree. He was found guilty, and sentencing was scheduled for two months later. Prior to sentencing, Mr. Lester’s defense attorney ran into another superior court judge, who told him that a jury administrator was aware that members of a victim advocacy group (New Hope) were in the courtroom when the minors were testifying and directing “signals” at them. The defense lawyer corroborated the information directly with the jury administrator, who also informed him that she told the trial judge about this during Mr. Lester’s trial.
The trial judge acknowledged at sentencing that “in hindsight” the issue should have been brought to the attention of the attorneys! Mr. Lester filed a number of motions. The trial judge set a special hearing and postponed sentencing. A different judge reviewed the evidence at the hearing and concluded there were no signs or signaling during one of the children’s testimony. He denied Mr. Lester’s motion to dismiss and sentenced him to 318 months in prison. Mr. Lester argued that a new trial was needed because the trial judge violated the appearance of fairness doctrine.
Division 1 agreed with Mr. Lester on appeal. The trial judge’s failure to inform the parties of the alleged witness signaling violated the Code of Judicial Conduct (“CJC”). CJC 2.9(B) indicates if a judge receives an unauthorized ex parte communication bearing on the substance of the matter, the judge “shall make provision promptly to notify the parties.” There was no dispute the trial judge did not so notify the parties.
Division 1 provided four reasons for a new trial with a different judge: (1) Mr. Lester was unable to address the allegation during trial, including inquiry into the nature and extent of New Hope’s involvement, Lester, at pg. 6; (2) a reasonably prudent and disinterested person would view the trial judge’s statements about the issue as biased, because the judge stated he could not imagine that employees of New Hope were giving signals, Lester, at pg. 7. Mr. Lester did not even have to demonstrate bias; “partiality” does not show an appearance of fairness; (3) a reasonably prudent and disinterested person would conclude the trial judge’s actions deprived Mr. Lester of a fair hearing since it directly impacted his criminal trial, Lester, pg. 7. Division 1 cited CJC 2.9(B) and held that the trial judge’s violation of the CJC impacted the case itself Lester, Id. (4) Division 1 also cited Sherman v. State, 128 Wn.2d 164, 205 (1995), where the court held “the CJC recognizes that where a trial judge’s decision is tainted by even a mere suspicion of partiality, the effect on the public’s confidence in our judicial system can be debilitating.”
Division 1 stated “we cannot condone informal and off the record handling of serious trial irregularities.” Lester, pg. 8.
Mr. Lester confessed. The advocacy group here was likely well-meaning, yet the children will have to go through another trial. Why were the signals even considered?