Clallam County Prosecutor Deb Kelly can continue trying a theft case despite the likelihood her husband will be called as a witness for the defense, a judge ruled last week.
Ralph Anderson, defense attorney for former sheriff’s evidence technician Staci Allison, filed a motion in October 2010 to disqualify Kelly from the case based on her husband’s position as a potential witness.
Allison is accused of stealing $8,644 from the evidence room after 129 empty evidence bags that once contained $51,251 were found stuffed in a plastic tube in 2006. Theft and money laundering charges were filed in 2009 based on the amount the Prosecutor’s Office believes it can prove.
Anderson said Don Kelly, a former sheriff’s sergeant, is a key witness for the defense because he conducted a clean-up of the evidence room after the investigative audit and found $5,000.
Though Kelly said there are other people who were around when the money was found and could testify, Anderson disagreed.
“He has personal knowledge of it, he is the only one that can really testify about what he did and his evidence suggests the audit was unreliable,” Anderson said.
Anderson said the money found by Don Kelly calls into question the accuracy of the investigation.
“There are all kinds of people that could’ve committed this crime because of the lack of oversight and the lack of audits,” Anderson said.
During oral argument Jan. 27, Kelly said it should be a substantial event that would cause the court to intervene. She maintained there would be no conflict if she were to continue with the case and she would move to have her husband dismissed as a witness if it came to that.
“Other people were with him when he found the money,” she said.
Anderson argued the opportunity to prep Don Kelly as a witness and the appearance of misconduct would be greater than other witnesses since he and the prosecutor are married.
“I don’t think the fact I see him at night makes a difference,” Kelly responded.
Clallam County Superior Court Judge Ken Williams said in a Feb. 1 ruling there is potential for an ethical conflict but it is not clear there will be one. There isn’t enough evidence of a conflict for the court to remove Kelly as prosecutor, he ruled.
Anderson said it wasn’t “wildly absurd” to ask that Kelly step down from the case.
“It’s a legitimate issue,” he said. “I raised it and I think I was right in doing so.
I would’ve excused myself.”
Kelly said she was pleased with the ruling but not surprised. If Anderson does call her husband as a witness, she will seek to have him eliminated, she said.
“His testimony would be duplicative of other people,” she said. “There are other people available who could testify exactly to what he could testify to. There were other people who found money on other occasions.”
Kelly said the $5,000 found by her husband and the money found by other people were not part of the money Allison is accused of stealing.
The trial is set for Feb. 14 but both sides said they will seek to have it moved to a later date in the summer.
Reach Amanda Winters at firstname.lastname@example.org.