Lawyers with the King County Department of Public Defense (DPD) have repeatedly used a simple technique to disqualify McKenna from more than 200 cases so far this year — more than double the disqualifications faced by all six other municipal court judges combined in 2019.
The number of disqualifications — invoked by attorneys who file an affidavit of prejudice — has shot up especially in recent weeks, after Seattle City Attorney Pete Holmes and Anita Khandelwal, director of the DPD, accused McKenna of being prejudicial and asked him to step down as presiding judge, a request McKenna declined. In the period since the two made their claims, defense attorneys have filed affidavits of prejudice against McKenna at 10 times the rate of the total filed for the rest of his colleagues.
Lawyers in Washington state get one opportunity to switch judges in a case by filing the affidavit of prejudice, a one-page declaration. The attorneys need only to sign their name and they're granted a new judge, few questions asked. Because it can be used only once per case — before the assigned judge has made any substantive rulings — it's not a path to get the most favorable judge, but to avoid the judge perceived to be the worst for a client.
These affidavits are most often filed when attorneys learn which judge will handle their case. Yet attorneys appear to be filing dismissals against McKenna earlier in the process, before their cases have been assigned. The attorneys' willingness to use their one affidavit so early serves as both a guarantee their case won't land before him and a statement about their lack of faith in the court's presiding judge.
"This is pretty much a vote of no confidence in Judge McKenna by the lawyers who are on the ground," said Chris Jackson, who supervises public defenders working in Seattle Municipal Court.
Through a spokesperson, Judge McKenna declined to comment for this story.
Since at least 2017, McKenna — an elected figure who has found himself at the center of Seattle's debate on repeat offenders, mental illness, public safety and the balance between treatment and incarceration — has faced more disqualifications than the court's other judges.
That's because, among public defenders in particular, McKenna has gained a reputation for issuing harsher sentences than what's recommended by the defense and prosecution. It's an approach his detractors cast as outdated and that his supporters call a necessary stopgap to fill a public-safety vacuum left by the City Attorney's Office.
In his response to Holmes and Khandelwal last month, McKenna said a "fair and impartial judiciary is imperative to preserving the principles of justice and rule of law." On his relationship with the defense, McKenna said, "the record does not support any suggestion or inference that I disregard the advocacy of legal counsel."
Data provided to Crosscut through a public records request suggest that defense attorneys, particularly in recent weeks, disagree.
Even prior to the recent increase in disqualifications, McKenna was racking up affidavits. With 200 dismissals in 2017 and 2018, he far outpaced his colleagues. Judge Kimi Kondo (ret.) had the next most at 128.
But the recent increase is dramatic. McKenna was booted from 207 cases between Jan. 1 and May 15 of this year. That is more than double the affidavits faced by all six of his colleagues combined.
In the three weeks after Holmes and Khandelwal demanded McKenna step down in their April 24 letter, he’s had 112 affidavits filed against him, compared with a total of 13 his six colleagues received in that period. On five of those days, he faced more than 10, including 18 on April 27.
Supervisors with DPD said repeatedly that there is no top-down order to file an affidavit against McKenna, but that the increased numbers are the result of individual decisions based on what’s best for clients.
"It's to the level where the attorneys that I supervise, it's essentially unanimous that the best thing that they can do for their clients is to affidavit [McKenna] because they have no confidence they can get a fair hearing or trial from him," said Matt Covello, a supervisor in DPD.
When she worked in Seattle Municipal Court, public defense attorney Sadé Smith said she felt his trials were fair. “It's the sentencing hearings that were particularly problematic,” which is why more attorneys have felt the need to submit affidavits against him, she said.
At the same time, lawyers with both DPD and the City Attorney’s Office made good on a threat from Holmes and McKenna to boycott the technical bench/bar meetings that are standard between attorneys and the court’s presiding judge, skipping a set meeting last Tuesday, according to spokespeople from both offices. The two attorneys stated in their letter that they will not attend the meetings as long as McKenna is presiding judge.
Seattle Municipal Court is busy enough and the schedule set in a way that McKenna has not been sidelined. He still hears cases and has significant administrative and coordinating duties as the court's presiding judge — a role bestowed on him by his colleagues. On a recent Tuesday morning, his assigned courtroom was bustling with attorneys and their clients swinging through the saloon doors that separate the public viewing area from the counsel tables before the judge's bench. As McKenna assigned courtrooms and set trial dates, his calm belied any controversy surrounding his seat.
But because he is being taken off so many cases so early in the process, it could mean that the municipal court will need to bring in more pro-tem judges to help move those cases forward, according to a court spokesperson.
McKenna has retained vocal support in the wake of the letter from Holmes and Khandelwal. He has been defended by The Seattle Times editorial board, former Seattle City Councilmember and Mayor Tim Burgess and burgeoning online community groups, like Safe Seattle, that push for more stick than carrot in the city's response to homelessness. Q13 commentator Brandi Kruse said the letter "perfectly sums up the dysfunction of Seattle."
"Will any other elected official dare speak the forbidden words that McKenna uttered, acknowledging that Seattle’s leniency and generous social services are attracting criminals from around the state and nation?" The Times editorial board posited.
Inside Seattle Municipal Court on May 16, 2019. (Photo by Dorothy Edwards/Crosscut)
McKenna now occupies an unlikely place for a judge serving in a municipal court, his name triggering passionate responses from the city’s partisans. But Judge McKenna hasn't always been such a lightning rod. Before he was elected to the Seattle Municipal Court in 2010, he worked as a prosecutor in the City Attorney's Office for more than 20 years.
Among his roles was precinct liaison, through which he would offer real-time legal advice to officers and, according to the City Attorney’s Office, “address neighborhood problems before they become Seattle Police Department criminal problems.” In order to foster better communication between officers and the community, he worked out of one of the city's police precincts.
"He was one of the first and one of the best I ever had," said former City Attorney Tom Carr, who lost his position to Holmes in 2010 and is now the city attorney of Boulder, Colorado.
Carr hasn't tracked the trajectory of McKenna's career, but said he would never have cast him as a "law-and-order" type. In fact, said Carr, his role as a precinct liaison put him in close contact with the community. "It's the exact opposite of law and order. There's no way I'd describe Ed that way," he said, before adding, "I mean, compared to Pete Holmes, he probably does look law and order, but that's Pete."
"I don't know whether he liked me or didn't like me," Carr added, noting that McKenna supported Holmes' bid for city attorney. "But I always respected his professionalism in the way he did his job, and I'd be surprised if he was doing anything but that as a municipal court judge. "
Jordan Royer, a public safety adviser in the administration of Mayor Greg Nickels, worked with McKenna on what Royer described as "chronic nuisance issues and neighborhood quality of life issues."
"I always thought he was always very thorough, knew his stuff; he just did his job," Royer said. "I could always depend on him to do his job and work with us to get things done."
As a prosecutor, though, it was inevitable that McKenna would make some enemies. He sought a lengthy sentence for Garland Lewis, who had been arrested in a bar where a fight had broken out. Lewis struggled with addiction at the time and had been picked up by police and charged with obstruction on multiple occasions.
Lewis and his public defender fought the sentence, and he never ended up serving time beyond when he was booked. Fifteen years later, Lewis is sober and working in construction, currently helping build one of Amazon's new downtown towers. He still thinks of McKenna, a show of the lasting impact of individuals within the legal system.
"I am not who they were trying to make me out to be," he said of McKenna and the other prosecutors under Carr.
When McKenna ran for his current position in 2010, he had support from a broad swath of political figures and media outlets. Holmes endorsed him. The Stranger supported him, describing him as "even-keeled." PubliCola celebrated that he "targeted repeat auto thieves for enhanced prosecution."
He beat the incumbent, Edsonya Charles, collecting nearly 70 percent of the vote.
In his first years on the Seattle Municipal Court — which handles misdemeanor and gross misdemeanor crimes and civil infractions — one local attorney described his reputation as "undistinguished" from the other judges.
But that reputation has shifted, the result of specific actions or statements. Covello with DPD said he believes the affidavits began to increase last year because McKenna sanctioned one attorney, a decision Covello and others in the department felt was unfair.
Earlier this year, following a report on some of Seattle's most frequent repeat offenders — all of whom were homeless — McKenna expressed his frustration at the city's criminal justice system to Q13. “If they have been offered services countless times in the past and they are unwilling to accept those services or unwilling to follow court orders, at some point we have to protect the public. If that means incarceration, so be it,” McKenna said.
Following the airing of that report there was again an uptick in attorneys filing affidavits against him.
The most dramatic increase in affidavits came following the letter from Khandelwal and Holmes. The joint letter was notable because the two attorneys are opponents in the legal system. "There is quite a bit of aggression and animus between the City Attorney's Office and the defense attorneys at Seattle Municipal Court," said Covello.
Among several issues raised in their letter, Holmes and Khandelwal cited McKenna's move to reject a plea agreement for one frequent arrestee and instead impose the maximum 364-day sentence.
"When parties who know the cases really well, and they work really hard on a negotiated resolution of the case, and they put that in front of Judge McKenna, and Judge McKenna blows it up … that makes it very difficult for parties to negotiate cases," said the DPD's Jackson. "And in our criminal justice system, where the vast majority of cases are resolved through plea negotiations and he is going to act in an arbitrary manner in response to negotiated pleas, that completely undermines our ability and our confidence to reach an agreed resolution in cases."
But others in the city support McKenna because of his willingness to reject a plea deal. For Royer, the defense of McKenna is rooted in a perception that the city's prosecutors should, in fact, be asking for longer sentences than they are.
"The situation has gotten really, really bad, and I'm sorry but people want laws enforced," Royer said, "and I think having a judge that wants to enforce the law — if that's controversy in Seattle, I don't know where we are."
The controversy around McKenna is a relatively small piece of what has become an expansive and messy debate over how best to address the region's most intractable issues around homelessness, housing, drug addiction, mental illness and the criminal justice system. KOMO's dramatic and divisive news special "Seattle is Dying," in particular, has become a focal point for the debate, but the fight has been playing out all over the city in town halls, public forums and city council meetings.
These issues are already driving much of the conversation leading up to this fall’s election to fill seven Seattle City Council seats. Meanwhile, Mayor Jenny Durkan has assembled a task force on public safety. Even a federal judge, James Robart, offered his unprompted thoughts this week on the role police should or should not play in addressing the homelessness crisis.
In Seattle's courtrooms, the debate boils down to a question of treatment versus incarceration — and at what point the former should give way to the latter. Fair or not, McKenna has come to symbolize a more traditional law-and-order approach in the eyes of both his supporters and detractors — be it the full-throated support from The Times' editorial board or the overwhelming uptick in affidavits.
"I don't think he likes it being politicized," said Royer. "He's not a political person. He just doesn't think that way."
It’s too late for that.
