United States District Court, W.D. Washington, Tacoma
ORDER DKT. #563
B. Leighton United States District Judge
MATTER is before the Court on remand from the Ninth Circuit
Court of Appeals [Dkt. #563]. The Court reconsiders whether
to impose sanctions on Plaintiff Hernandez's attorney,
Thomas Boothe, for intimidating Debra Quinn, an assistant
city attorney for Defendant City of Vancouver and a witness
in the underlying case. The Court has already found
Quinn's account of Boothe's intimidation effort
credible (and Boothe's explanation not), and it will not
revisit that finding now, five years later. It will instead
focus-as directed by the Ninth Circuit- on (1) whether
Boothe's actions amounted to witness intimidation, (2)
and if so, whether to impose sanctions.
2002, Hernandez complained his Vancouver Fire Shop coworkers
were discriminating against him. He filed a complaint with
the Equal Employment Opportunity Commission. Quinn prepared
the City's response. The Commission entered a probable
cause finding, and in 2004, Hernandez sued the City of
Vancouver and his supervisor for employment discrimination.
Quinn waived service and answered for both defendants.
Outside counsel then took control of the case, although
Quinn's name remained in CM/ECF as an attorney of record.
Lead counsel changed hands a couple more times, but
ultimately, Robert Christie served as Defendants' lead
was not Defendants' attorney or advocate but a witness
and client-representative for the City. Boothe was fully
aware of this-he deposed Quinn in April 2006. See
Dkt. #578 (Vancouver Brief) at Ex. 1 (Quinn Dep.). He asked
about matters an attorney engaged to defend the case would
have claimed was work product: her perception of Hernandez
during the EEOC process, her involvement in investigating his
allegations, her communications with his former counsel, and
how she interacted with Human Resources during the
investigation. See id.
stopped serving the City Attorney's office, serving only
Christie Law Group, by January 2011. Defendants identified
Quinn as a potential witness in May 2012. Boothe did not
object. He prepared his cross-examination of her.
See Dkt. #504, Ex. 4 (Boothe's billing records)
at 7. At that time, the City's counsel also reminded
Boothe he did not have permission to contact Quinn outside of
their presence. Boothe's paralegal updated his
“Debra Quinn witness outline” on June 7, a few
days before the start of trial. See id. at 28.
start of voir dire, the Court identified Quinn as a potential
witness. She was introduced as the City's client
representative, not its attorney. She sat at defendants'
table in that role. Quinn did not participate as an attorney
in any aspect of the trial; indeed, the transcripts reveal
she never spoke a word in the jury's presence: She did
not introduce herself, conduct voir dire, give an opening
statement, or examine a witness. She did not argue to the
second day of trial, Boothe stopped Quinn as she was walking
into the courtroom after lunch. Alone in the hallway, without
City counsel present, he informed Quinn her estranged husband
had called him nine months before to inquire whether she and
Boothe were having relations, and that he knew the City had
held a confidential mock trial. Boothe also told her he knew,
from a rumor circulating around the City, she was having an
extramarital relationship with the former city manager. Quinn
entered the courtroom, and Boothe followed. He said, “I
just wanted you to know that before you testify next
week.” Dkt. #305 (Contempt Hearing Transcript)
reported Boothe's statements to counsel, and prepared a
letter to the Court detailing Boothe's conversation with
her. The same morning, the Court received notes from two
jurors expressing concern that Boothe was coaching his
THE COURT: Please be seated. I have received a couple
questions from the jury, or comments.
"Juror No. 5: I notice the prosecuting attorney shaking
his head yes or no while looking at the witness during
cross-examination. Not sure if it's just in anticipation
of knowing the witness or 'signaling' answers to the
"Juror No. 4 (Heather Smith): Yesterday during Sue
Collins and Arnold's time on the witness stand, the
prosecuting attorney, Mr. Boothe, would be sitting while Bob
was cross-examining and while everyone's attention was on
the witness, he would shake his head yes or no violently and
lip yes or no over and over again while making eye contact
with the witness, directly after Bob asked his question. On
both occasions, the witness answered exactly as the
prosecuting attorney had scripted."
Those are the two letters. And then more importantly is a
letter I received from Debra Quinn this morning. You better
read it, Mr. Boothe.
Dkt. #278 (Mistrial Transcript).
Court heard from Boothe and Christie, and declared a mistrial
on June 14, 2012. It reasoned Boothe's actions towards
Quinn and towards his witnesses had tainted the judicial
THE COURT: Please be seated. Ladies and gentlemen, I have,
with regret, declared a mistrial, and I want to explain in
part why and to say that I am appreciative of the jurors who
asked questions and made comments about what they were
seeing; and the effect on the trial was noted, ...