Judge to let prosecutor's office handle Nickels retrial

EPHRATA — Grant County Prosecutor Garth Dano and Chief Deputy Prosecutor Alan White will not be allowed to interfere with or have input on any aspect of the David Nickels retrial.

Nickels, of Helena, Mont., was convicted in 2012 of murdering 35-year-old Sage Munro on the doorstep of his Ephrata home in 2009. Prosecutors obtained a first-degree murder conviction and Nickels received a 25-year prison sentence. After the verdict Nickels filed a motion stating there was permissive language in the “to convict” instruction given to the jury. The trial court shot down the request and Nickels appealed.

The Washington Court of Appeals, Division III, ultimately ruled the jury instruction “deviated” from the standard instruction that is set in the Washington Pattern of Jury Instructions. The judges ruled the word “should” in the instructions constituted a structural error and Nickels’ conviction was reversed and the case was remanded back to Grant County for a retrial.

On Wednesday a hearing was held to discuss a number of pressing issues in the retrial, the biggest ones being whether the Grant County Prosecutor’s Office should continue prosecuting the case and whether or not Nickels’ defense attorneys, Jacqueline Walsh and Mark Larrañaga, are still contracted to continue representing Nickels.

With regard to the prosecutor’s office, Nickels defense team argued the prior involvement of Grant County Prosecutor Garth Dano and Chief Deputy Prosecutor Alan White with the case constituted a conflict of interest and the entire office should be disqualified from handling the case.

Larrañaga explained that before White was brought into the prosecutor’s office by Dano he represented Ian Libby, who Nickels’ defense team argued had murdered Munro. With regard to Dano, Larrañaga said before he was elected prosecutor he represented Nickels on the murder case.

“He met with Mr. Nickels, he discussed strategies with Mr. Nickels, he discussed strategies with Ms. Walsh and myself, he was intimately involved in aspects of this case. He met with Mr. Nickels after the verdict,” Larrañaga stated.

The fear is, according to Larrañaga, that Dano and/or White could potentially give information to the prosecutors handling the case. The defense argued the prosecutor’s office already knew they should be disqualified from handling the case when Dano came on as prosecutor in 2015, evidence of which, they allege, is the office contracting work with Kitsap County to handle Nickels’ appeal.

Deputy Prosecutor Kevin McCrae told the court the decision to have Kitsap County handle the appeal was made when former prosecutor Angus Lee was still in office. In addition, McCrae said Dano did not represent Nickels in the ordinary sense.

“He was not the lead counsel, he wasn’t even second chair. He wasn’t there for the trial. He wasn’t there during the motions. He wasn’t there for most of it. For the small part that he was there he had no significant involvement,” McCrae stated.

Grant County Superior Court Judge David Estudillo ruled the prosecutor’s office can continue handling the case, stating that from his perspective Dano has not had any control over or say in how the prosecution has proceeded thus far, or how it will proceed in future. Dano and White were barred from having any involvement in the case, with Estudillo requiring McCrae to update him every 30 days and confirm there has been no involvement in the case by Dano or White.

“I think I am right, but the state has to be aware and I put this out to the public and the family, that I could be wrong, quite frankly. I think I am right, but I could be wrong. So if the prosecutor wants to go forward with this, I am going to grant that. But in the end I could get overturned, although I think I am right,” Estudillo said.

The court also heard argument on the continued appointment of Larrañaga and Walsh on the case, who were contracted by Grant County to represent Nickels in 2010. The prosecution was of the belief that Larrañaga and Walsh’s involvement in the case ceased when the case went to appeal and Nickels should go through the normal appointment of an attorney by the Grant County Office of Public Defense.

“We are not asking to remove counsel, they are not on the case. They were removed four years ago,” McCrae remarked.

The defense argued their representation of Nickels never ceased and the prosecutor’s office has no standing on who should represent the defendant. Larrañaga said it would take at least a year for two new defense attorneys to get well acquainted with the case and prepare an adequate defense.

“We have a long-standing, working, in-depth knowledge of this case. We are the lawyers that are prepared to go to trial soon,” Larrañaga said.

Estudillo ruled Larrañaga and Walsh can continue representing Nickels. He ordered the defense to provide the court with invoices of expenses associated with the case.

Richard Byrd can be reached via email at city@columbiabasinherald.com.