Judge won't face charges: Tree-cutting decision creates furor
By Janet Burkitt and Ray Rivera
Seattle Times staff reporters
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Seattle parks officials and activists yesterday quickly condemned King County Prosecuting Attorney Norm Maleng's decision not to seek criminal charges against a federal-court judge whose hired crews cut down more than 120 trees in Colman Park last summer.
"This was an opportunity to send a strong message to the public that it is illegal and wrong to remove publicly owned trees for any citizen's benefit, and they missed it," Seattle Parks and Recreation Superintendent Ken Bounds said in a prepared statement.
Judge Jerome Farris, of the 9th Circuit Court of Appeals, apologized yesterday in his first public comments about the incident. He said he has "cherished and loved the beauty of the park," and planned to pay for cleanup and restoration.
"I could never intentionally engage in any conduct which would damage or otherwise diminish the value of any park," Farris said. "The last thing I would want to do would be to increase the burden on our parks department, which does a remarkable job with inadequate resources."
At a news conference yesterday, Maleng said he couldn't file criminal charges because there was no evidence of intent or malice by Farris.
Both Maleng and Farris' attorney described the tree-cutting as a mistake that stemmed from a series of misunderstandings, including a language barrier.
County prosecutors and several legal experts said malicious mischief was the only felony that could have been pursued. Malice, under state statute, involves "an evil intent, wish or design to vex, annoy, or injure another person," Maleng said.
"That is why the apparent misunderstanding is important here — it tends to negate the mental element that must be proven, that of maliciousness," Maleng said.
Maleng instead referred the case to Seattle City Attorney Tom Carr, whose office is preparing a civil case against Farris. Carr will decide by the end of the week whether to pursue misdemeanor charges as well, said Kathryn Harper, the city attorney's spokeswoman.
Unlike a felony malicious-mischief charge, a misdemeanor charge would not require proof of unlawful intent. It would carry a maximum of 90 days in jail and a $100,000 fine.
The city also could seek gross-misdemeanor charges, which carry up to a year imprisonment and a $5,000 fine, Harper said.
Civilly, the city can sue for up to triple the cost of the trees and restoration work, if it can prove the wrongdoing was intentional. If it can't, it can sue for the actual costs of the trees, about $135,000, and labor, about $100,000.
Farris, 72, said he asked his gardener to cut down some trees on his Lake Washington view property along a fence bordering the park, in the Mount Baker neighborhood, but the gardener apparently misunderstood his directions.
More than 120 trees were cut to stumps, Maleng said.
Farris, a senior judge who now fills in on federal circuit courts around the country, was out of town when the work was done and didn't return until Sunday. He no longer lives at the home.
The gardener, Duc Huynh, could not be reached for comment.
Farris also said he believed he was authorized to cut down some trees based upon an earlier agreement with the city. In 1981, the city gave him permission to trim trees blocking his view of Lake Washington, although the permit didn't authorize future trimmings.
"I think it's fair to say that he was careless," said Farris' lawyer, John Wolfe of Seattle. "He did not go back and look at it. He had a recollection of what the agreement said ... and he was mistaken."
Farris was appointed to the Washington State Court of Appeals in 1969, and he served as chief judge for the 1977-78 term. President Carter appointed him to the 9th Circuit U.S. Court of Appeals in 1979, and he took senior-judge status in 1995. In 1998, Ebony magazine named him among the country's 100 most influential African Americans.
A city official close to the case, speaking on condition of anonymity, questioned whether Maleng's definition of malice was too narrow. The statute also says "malice may be inferred from an act done in willful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act of omission of duty betraying a willful disregard of social duty."
"Was it reasonable for someone who had a permit to cut trees 20 years ago to think they still had the right to do it," the official wondered.
Kim Burroughs, president of the Mount Baker Community Club, said she found the judge's explanation "a little weak."
She fears yesterday's decision might lead other people to think "that if you have enough influence you can get away with whatever you want."
Last night, some of Farris' neighbors discussed Maleng's decision before the regular meeting of the Mount Baker Community Club. They said that Farris, given his occupation, should have realized what he was doing.
The community club will send a letter to Carr, asking the city attorney to find a suitable punishment for Farris.
"I feel like I've been ripped off. The Colman Park trees belonged to all of us," said Joyce Moty, a Mount Baker resident.
Of Maleng's decision, she said, "It's a judicial old boy's club."
Dan Donohoe, spokesman for the prosecutor's office, said there was "no preferential treatment at all."
"We did a very thorough examination of the case, and we came to the conclusion that a malicious mischief charge would not apply," he said.
Farris' case closely resembles one from Bellevue also on Maleng's desk. In June, police discovered a tree-cutting company cutting roughly 30 trees on a city trail in an upscale Bellevue neighborhood. The uphill neighbor, a former technology company executive, told police he ordered the cutting after getting the green light from a city official several years earlier, according to police reports. That official, however, contradicted his claim.
The prosecutor's office expects a decision on the Bellevue case in a few weeks, Donohoe said.
Meanwhile, the fallen trees remain in Colman Park, looking "like pick-up sticks," Seattle parks spokeswoman Dewey Potter said.
She said the city planned to recycle them for chips to use in city flower beds and shrubs.
"Lemonade from lemons," Potter said.
Staff reporters Michael Ko and Warren Cornwall contributed to this report.
