Pierce County
Office of Prosecuting Attorney

MARK LINDQUIST
Prosecuting Attorney

REPLY TO:
CIVIL DIVISION
955 Tacoma Avenue South, Suite 301
Tacoma, Washington 98402-2160
FAX: (253) 798-6713

Main Office: (253) 798-6732
(WA Only) 1-800-992-2456

June 22, 2016
Felice P. Congalton
Associate Director
Office of Disciplinary Counsel
Washington State Bar Association
1325 Fourth Avenue, Suite 600
Seattle, WA 98101-2539
(via caa@wsba.org)
Re:

ODC File No. 16-00748
Preliminary Response to Grievance by John Cain against Pierce
County Prosecutor Mark Lindquist and DPA Jared Ausserer

Dear Ms. Congalton:
Pierce County Prosecutor Mark Lindquist and Deputy Prosecutor Jared Ausserer
have asked me to respond to your May 13, 2016 letter regarding the above-referenced
grievance, which alleges violations of RPC 3.6 and 3.8 when Prosecutor Lindquist
participated by telephone in an interview on the Nancy Grace program during the trial of
Skylar Nemetz.
So far as we know, neither Mr. Nemetz nor anyone representing him has submitted
such a grievance. Mr. Cain, on the other hand, has filed bar complaints against numerous
attorneys in the Pierce County Prosecuting Attorney’s Office, has written numerous letters
criticizing the Pierce County Prosecuting Attorney’s Office, and supported a failed
political recall of Prosecutor Lindquist. His animus towards the Pierce County Prosecuting
Attorney’s Office is a matter of record, as is his unfortunate willingness to manipulate the
record to create misleading and false impressions designed to support his political attacks.
A prominent example of this tendency occurs on page 3 of the grievance. Mr. Cain
quotes RPC 3.6 subsections (a) and (d), but entirely omits RPC 3.6(b), perhaps because he
is aware that RPC 3.6(b) eliminates the basis for Mr. Cain’s complaint. RPC 3.6(b) states:
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved;
(2) information contained in a public record;

Lindquist Grace 2016-06-22 Ltr to F Congalton (Joint).docx

 Felice P. Congalton
Washington State Bar Association
June 22, 2016
Page 2

(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information
necessary thereto;
(6) a warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1)
through (6);
(i) the identity, residence, occupation and family status of the
accused;
(ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;
(iii) the fact time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies
and the length of the investigation. (Emphasis added.)
“Information contained in a public record” is not defined, but should be broadly
construed because, as stated in Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054
(1991), there has been no “abandonment of our normal First Amendment principles in the
case of speech by an attorney regarding pending cases.”
At the top of page 2 the grievance sets out a short exchange between Prosecutor
Lindquist and host Nancy Grace, but makes no effort to argue that his comments disclosed
information not already in the public record. They clearly did not.
The first exchange set out at page 2 of the grievance is as follows:
LINDQUIST: And that's the whole question. Was this an accident? Was it
intentional? And that's why the defendant's experience with firearms is
critical to the case. But it's not just that physical evidence, it's the behavior
afterwards.
GRACE: Right.

 Felice P. Congalton
Washington State Bar Association
June 22, 2016
Page 3

In the criminal case, there never was a question that Nemetz held the weapon when
it fired, killing his wife. The issue from the start was whether the discharge was accidental
or intentional. The October 22, 2014 Declaration for Determination of Probable Cause - a
public record filed with the court – makes this crystal-clear, alleging (on page 1 line 13)
that the defendant “did commit the crime of murder in the first degree," for which RCW
9A.32.030(1)(a) requires “premeditated intent.” The declaration alleged the shooting was
intentional (and therefore necessarily not accidental). Prosecutor Lindquist’s first 3
sentences in the first exchange simply summarized the positions of the parties as already
reflected in the public record.
The fourth sentence, stating “the defendant's experience with firearms is critical to
the case,” is also reflected in the probable cause declaration, at page 2 lines 6.5 - 8.5:
Mr. Nemetz then described his familiarity with firearms. He said that he had
been around firearms since he was 11 years old. He received additional
training in the military. He said he was aware how to properly clear a rifle
and described the appropriate manner to do so, which included a visual
inspection of the chamber to ensure a round was not in the chamber. He
gave no explanation as to why he did not clear the weapon as he had been
trained.
In the second exchange quoted by the grievance, Respondent Lindquist then
elaborated upon the “behavior afterwards” mentioned in the first exchange:
LINDQUIST: The defendant never called 911. He never called for help. He
seemed more focused on cleaning up the scene, disposing of the liquor
bottles ...
GRACE: Oh!
Here again, Prosecutor Lindquist was simply repeating information which was
already in the public record. The probable cause declaration at page 2 lines 13.5 - 15.5
stated as follows:
Mr. Nemetz told detectives that after shooting his wife he knocked the
magazine under the bed and threw the AR 15 into the closet. He said that he
then flushed a bottle of cinnamon whiskey down the toilet. When asked
why he took the time to do all of these things instead of offer aid to his wife
or call 911, Mr. Nemetz was unable to provide a reason. No bottle of
whiskey was recovered from the apartment.

 Felice P. Congalton
Washington State Bar Association
June 22, 2016
Page 4

Similarly, Respondent Jared Ausserer's December 31, 2015 affidavit supporting the
State’s response to a Knapstad motion to dismiss stated as follows at page 7 lines 2-9:
The defendant told detectives that after shooting his wife in the back of the
head he realized that he had alcohol in the house and had to get rid of it
because he was not 21 years old. So instead of rendering aid to his wife, the
defendant threw the firearm in the closet, went to the kitchen and grabbed
the alcohol that was on top of the refrigerator. He went to the bathroom and
poured the alcohol down the toilet before taking the bottles to the back
porch and throwing them into the brush. The neighbor below the defendant
reported that she heard someone running above her and then the toilet
flushed twice shortly before police arrived.
The remaining exchanges quoted by the grievance also simply repeat information
already in the public record:
LINDQUIST: …than getting help. And it’s his actions combined with his
statements…
GRACE: Behavioral evidence.
LINDQUIST: ... and his experience with firearms that add up to murder,
rather than accident.
In short, in the exchanges quoted by the grievance, Prosecutor Lindquist did
nothing more than articulate the prosecution's theory of the case, which had already been
set out for months in the public court file. RPC 3.6(b)—the very subsection omitted by
Mr. Cain from his grievance—clearly entitles Prosecutor Lindquist to speak publicly about
information in the public record. Prosecutor Lindquist did exactly that. Consequently,
there is no RPC violation and the grievance should be dismissed.
At the bottom of page 4, Mr. Cain’s grievance transitions to RPC 3.8 “Special
Responsibilities of a Prosecutor” and alleges that Prosecutor Lindquist violated subsection
(f) concerning extrajudicial comments. Once again, however, Mr. Cain selectively quotes
the relevant authority: at page 4, the grievance quotes part of Comment 5, but omits critical
language at the end of the comment which cautions that RPC 3.8(f) does not abrogate RPC
3.6(b):
Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial
statements that have a substantial likelihood of prejudicing an adjudicatory
proceeding. In the context of a criminal prosecution, a prosecutor's
extrajudicial statement can create the additional problem of increasing
public condemnation of the accused. Although the announcement of an

 Felice P. Congalton
Washington State Bar Association
June 22, 2016
Page 5

indictment, for example, will necessarily have severe consequences for the
accused, a prosecutor can, and should, avoid comments which have no
legitimate law enforcement purpose and have a substantial likelihood of
increasing public opprobrium of the accused. Nothing in this Comment is
intended to restrict the statements which a prosecutor may make which
comply with Rule 3.6(b) or 3.6(c) (emphasis added).
Because the allegations were detailed in the Declaration of Probable Cause and
other press coverage concerning it, there was no “substantial likelihood of heightening
public condemnation of the accused.” RPC 3.8(f). As noted above, every statement
Prosecutor Lindquist made to Ms. Grace had its source in the public record and therefore
complied with RPC 3.6(b). Further, the portion of Comment 5 Mr. Cain elided from his
grievance makes clear that the restrictions in RPC 3.8 are not intended to bar statements
that comply with Rule 3.6(b). Because Prosecutor Lindquist’s statements complied with
RPC 3.6(b), they complied with RPC 3.81, and this portion of the grievance should be
dismissed.
At page 6, Mr. Cain transitions again, alleging that Prosecutors Lindquist and
Ausserer violated RPC 3.3 by allowing DPA Greer to misrepresent to the Court that
Ausserer “was not involved in the decision to be on the Nancy Grace show.” Mr. Cain
insinuates that the fact that Mr. Lindquist asked Mr. Ausserer to sit in on the interview
with Ms. Grace means that Mr. Ausserer “made the decision” to be on the Nancy Grace
show.
This, of course, is absurd. Prosecutor Lindquist made the decision to participate in
the interview. DPA Ausserer had no role in that decision; to the contrary, his entirely
appropriate role was to serve as a factual resource for Prosecutor Lindquist and to help
Prosecutor Lindquist ensure that his comments stayed within the boundaries of the public
record as required by RPC 3.6(b). To that end, Prosecutor Lindquist requested Mr.
Ausserer provide him with the public filings in the case, including the Declaration for
Determination of Probable Cause and the affidavit supporting the State's response to the
Knapstad motion to dismiss. Prosecutor Lindquist reviewed these documents to ensure
that any response he gave was restricted to statements in the public records. Indeed, in an
abundance of caution, Prosecutor Lindquist requested that Mr. Ausserer remain in his
office while he spoke telephonically to ensure the accuracy of his comments and their
existence in the public record.

1

At page 5 of his grievance, Mr. Cain asserts that a violation of RPC 3.8 can be a violation of RPC 8.4. This
argument fails for the simple reason that Prosecutor Lindquist did not violate RPC 3.8, rendering moot the
theoretical question of whether a RPC 3.8 violation can also be considered a RPC 8.4 violation.

 Felice P. Congalton
Washington State Bar Association
June 22, 2016
Page 6

As the above paragraph demonstrates, neither Mr. Ausserer nor Mr. Greer made
any decisions regarding Prosecutor Lindquist’s appearance on the Nancy Grace show.
That decision belonged to Prosecutor Lindquist. For this reason, his allegation regarding
RPC 3.3 should be dismissed.
The grievance’s final allegation is that Prosecutor Lindquist violated RPC 4.1 when
he allegedly said he was unfamiliar with the format of the Nancy Grace show. This
makeweight allegation fails for a number of reasons. First, Prosecutor Lindquist said he
does not watch the Nancy Grace show. That is a true statement. Prosecutor Lindquist
does not watch the Nancy Grace program, just as he does not routinely watch television
news (or television in general), even though he is frequently interviewed on such
programs. Second, RPC 4.1 prohibits “false statements of material law or fact” and
nothing could be less material than the dispute Mr. Cain seeks to orchestrate here, ie,
Prosecutor Lindquist’s description of his viewing habits (or lack thereof). This allegation
should be denied, as should the entirety of the grievance.
In sum, Prosecutor Lindquist is a public official tasked with explaining to the
public the work his office does. So long as he abided by RPC 3.6(b) (which he undeniably
did), Prosecutor Lindquist had every right to be interviewed by the Nancy Grace show.
The objections Mr. Cain lodges to Prosecutor Lindquist’s appearance are political, not
legal or ethical. They have no place in our Bar’s grievance system, and his grievance
should be summarily dismissed.
Sincerely,

s/Denise Greer
Denise Greer
Deputy Prosecuting Attorney
(253) 798-7748
DG:jaa