Appeals Court: GC Prosecutor's Office not allowed to handle Nickels retrial

By RICHARD BYRD

Managing Editor

SPOKANE - An appeals court has ruled the entire Grant County Prosecutor’s Office must be recused from handling the retrial of an Ephrata man who was previously convicted of first-degree murder. The murder conviction was later overturned and sent back to Grant County for a retrial.

David Nickels, 38, of Helena, Montana, was previously convicted in 2012 of murdering 35-year-old Sage Munro on the doorstep of his Ephrata residence in 2009. A first-degree murder conviction followed, as did a 25-year prison sentence.

After the sentence was handed down Nickels filed a motion stating there was permissive language in the “to convict” instruction that was given to the jury. The trial court denied the motion and Nickels appealed. The Washington Court of Appeals, Division III, ruled the jury instruction deviated from standard instructions. They ruled the word “should” in the instruction constituted an error and Nickels’ conviction was reversed. The case was remanded back to Grant County for a retrial.

As retrial proceedings progressed Nickels’ attorneys raised the point that Grant County Prosecutor Garth Dano represented Nickels before he was elected prosecutor. In addition, Chief Deputy Prosecutor Alan White represented a man named Ian Libby, whom Nickels’ defense team argued was the person who killed Munro, before he started working at the prosecutor’s office.

The fear was that Dano and/or White would give information to the prosecutors handling the case. As a result, Judge David Estudillo ruled the prosecutors office could handle the retrial, but he barred Dano and White from having any involvement in the case and required updates every 30 days to confirm they were not involved.

“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 in June.

In a ruling that was made public on Thursday the appeals court judges reversed Estudillo’s decision. The decision hinged on affidavit from Nickel’s defense team that showed Dano was “privy to privileged work product information” when he was associated with Nickels’ defense team. In their decision Chief Judge Robert Lawrence-Berrey and Acting Chief Judge Rebecca L. Pennell noted Dano also met with Nickels individually after the entry of the jury’s verdict and “he presumably engaged in confidential attorney-client communications.”

The judges state if Nickels was facing a low-profile misdemeanor charge, the screening off of Dano might have been sufficient. Due to the seriousness of the charge, the judges ruled that no amount of screening would be sufficient enough to fully separate Dano from the case.

“Because Mr. Nickels has been charged with a serious offense, the same offense about which the Grant County Prosecuting Attorney has acquired privileged information through work product and attorney-client communications during his time as a private attorney, the entire Grant County Prosecuting Attorney’s Office must be recused from Mr. Nickels’s first degree murder prosecution.”

Judge Kevin M. Korsmo wrote a dissenting opinion and stated he is of the belief that the screening of Dano was adequate to protect Nickels’ right to a fair trial.

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