County prosecutor’s office declines to pursue hate crime charges for defaced Edmonds artwork

Community members — from left, Emily Paynich, Charlotte Paynich and Emma Van Tassell — work to restore defaced artwork July 14. (Photo by Liz Morgan)

Updated with news that Edmonds police have sent the case to the city prosecutor for consideration of misdemeanor charges. And further updated with Mayor Mike Nelson’s response to the prosecutor’s office decision.

The Snohomish County Prosecutor’s Office has declined to file criminal charges in the case of a 69-year-old Edmonds man who vandalized the “I Can’t Breathe” art installation on the fence at Edmonds’ Civic Park.

Edmonds police had referred hate crime charges to the Snohomish County Prosecutor’s Office in connection with the Tuesday, July 14 incident. The artwork — installed two weeks ago by Edmonds artist Christabel Jamison as part of the city’s On the Fence temporary artwork program — was defaced with black spray paint. It was restored by community members a few hours later.

“The facts in this case, as established by the investigative record provided to my office by the Edmonds Police Department, and the applicable law, do not support the charge of hate crime offense,” Snohomish County Prosecuting Attorney Adam Cornell said Wednesday.

While “the underlying conduct that gave rise to this referral is shameful and distasteful,” Cornell said his office “cannot advance the cause of social and racial justice by furthering an unjust felony prosecution. To do so would be unethical.”

Cornell said that his chief criminal deputy, Matthew Baldock, and a victim advocate spoke with the artist last week and communicated their decision not to file charges.

Edmonds police said Wednesday that the case has now been referred to the city’s prosecutor “for review and consideration of misdemeanor malicious mischief charges.”

Police reported that just after 1:30 p.m. July 14, witnesses saw the suspect use black spray paint to cover the letter “T” in the artwork, which changed the message to read “I Can Breathe.” Witnesses watched the man drive away, and were able to get his license plate number, taking pictures of it with a cell phone. They shared that information with Edmonds police, who were able to determine the identity of the suspect vehicle and contacted the suspect at his Edmonds residence.

The suspect told investigating officers that “he was upset with how police were being treated and upset about the location of the art installation,” which is across the street from the Edmonds Police Department,” Chief Deputy Prosecutor Baldock wrote in a document announcing the decline of charges. When officers informed the suspect that witnesses had seen him spray painting the installation, “he became argumentative and said something like ‘Do you want me to clean the paint off?’, Baldock said, adding the suspect “declined to provide any further statement or answer any more questions.”

Baldock noted that to obtain a conviction in a hate crime, the following elements would have to be proven “beyond a reasonable doubt”: The suspect caused physical damage to or destruction of property of the victim or another person; acted maliciously and intentionally; acted because of his perception of the race or color or ancestry of the victim; and the crime occurred in Washington state.

Some of these elements have been established, including the suspect’s identity and the fact that he damaged the art installation and did so “maliciously and intentionally. In addition, the incident occurred in Washington. But the “insurmountable problem” in the case, Baldock added, is “the lack of evidence that the suspect’s actions were motivated by his perception of the victim’s race.” While the artist who installed the artwork is biracial, there is no evidence to suggest that the suspect knew anything about the artist’s race, he added.

While details about the incident were reported in local Edmonds media, and the artist’s race was also mentioned as part of a descriptive summary taped to the fence near the artwork, there is no evidence that the suspect read news articles or the sign near the artwork, Baldock wrote. “Perhaps even more problematic in that regard is the fact that when contacted by patrol officers, the suspect offered an explanation for his actions that had nothing whatsoever to do with the artist’s race,” he added.

“Prosecutors charge crimes based on provable and credible facts and on the law as given to us by the legislature,” Cornell said in a statement accompanying the charging decision. “My office will continue to vigorously prosecute hate crime offenses where there exists sufficient evidence to prove the crime beyond a reasonable doubt. And we will continue to advance the cause of social and racial justice while concurrently safeguarding the rule of law to both protect and preserve a more civil society.”

Jamison, a lifelong Edmonds resident and recent Edmonds-Woodway High School graduate, said her goal in creating the “I Can’t Breathe” artwork was to support conversation in Edmonds about the Black Lives Matter movement. Her installation incorporates the colors of the African American flag, a symbol of love and unity, and the phrase in red vinyl letters “I Can’t Breathe,” which she sees as “a cry for justice of the Black community.”

Edmonds Mayor Mike Nelson said late Wednesday afternoon that he disagrees with the prosecutor’s decision not to pursue the hate crime charge, adding that it “denied justice not only for the artist who put her heart, talent and time into this art installation, but for the BIPOC members of our community.”

He also noted that the prosecutor’s office chose not to file charges in a previous case involving an employee of Harvey’s Lounge on Highway 99 whom Nelson said was “violently wielding a bat against two Black children in Edmonds,”As we reported in our earlier story, that incident involved racially motivated threats directed at two Black teenagers outside Harvey’s in February 2018.

Police charging documents filed with the prosecutor’s office following the Feb. 4, 2018 incident included a statement by one of the victims, an 18-year-old man — who said he feared for his safety after a woman carrying a baseball bat threatened him and his 14-year-old sister, using a racial slur.

In declining to file charges in the Harvey’s case, Cornell said that the Edmonds police investigation — which included both witness statements and extensive video footage from Harvey’s — indicated that the employee was holding a bat and that she did direct racial slurs at the teens. However, the bat “was not brandished in a threatening way,” Cornell said. “And the video proves that.”

Nelson said that in light of this second decision from the prosecutor’s office, “some residents have reached out to me to express their concern that they are starting to see a pattern of the prosecutor not seeking justice for crimes against Black people in Edmonds.”

“This is the second time our Edmonds police detectives have thoroughly investigated an incident, found probable cause, and brought forward charges of a hate crime, only to have them rejected by the county prosecutor,” Nelson said. “This is far more than just a crime —  this sends a chilling message to Black people and other people of color in our community that they are not welcome and not safe,” he added.

Here is the mayor’s complete statement:

I firmly believe that the malicious defacing of the “I Can’t Breathe” artwork, created by a local, young Black artist and selected as part of the City’s “On the Fence” public art program, was a hate crime and I disagree with the Prosecutor’s decision not to prosecute it as such.

This is the second time our Edmonds police detectives have thoroughly investigated an incident, found probable cause, and brought forward charges of a hate crime, only to have them rejected by the County Prosecutor.

Some residents have reached out to me to express their concern that they are starting to see a pattern of the Prosecutor not seeking justice for crimes against Black people in Edmonds, including the previous hate crime involving an employee of Harvey’s Tavern violently wielding a bat against two Black children in Edmonds.

This is far more than just a crime – this sends a chilling message to Black people and other people of color in our community that they are not welcome and not safe.

The Prosecutor’s office claims there is a “lack of evidence” that the suspect’s actions were motivated by his perceptions of the race of the victim.

“I can’t breathe” is the statement made by a Black man, George Floyd, while he was being brutally murdered by a white police officer. It has been a rallying cry for justice against police brutality of Black people by many concerned citizens nationwide and in our local community.

The suspect in this case admitted he was frustrated with how the police are being treated.

It is reasonable to infer by the public display of the artist’s race in the summary next to the sign, the widely published news interviews of the artist, and the suspect’s actions of spray-painting over the “t” in “I can’t breathe,” that he knew exactly what he was doing: that the victim was Black, that this art is meant to shine a light on racism against Black people and police brutality, and knowing this, he chose to destroy it.

The Prosecutors regularly rely on circumstantial evidence to prove their cases. How is this any different?

The jury decides whether a crime has been committed beyond a reasonable doubt – not the elected Prosecutor. Now, a jury will never get to decide whether this was a hate crime.

The Prosecutor denied justice not only for the artist who put her heart, talent and time into this art installation, but for the BIPOC members of our community.

— By Teresa Wippel

Publisher’s note: The suspect’s age was originally reported as 70 but the prosecutor’s office confirmed his age as 69.

 

 

21 Replies to “County prosecutor’s office declines to pursue hate crime charges for defaced Edmonds artwork”

  1. The case has now been referred to our city prosecutor for review and consideration of misdemeanor Malicious Mischief charges. Edmonds PD is not responsible for a charging decision.

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  2. Questions…

    if the suspect says he was making a political statement by altering the other political statement would that be a free speech issue?

    If he was tried and convicted, since he is 69 wouldn’t the state just release him because of Covid concerns?

    is this art project a permanent public fixture or is there a timeline when it will expire and the space will be opened up for a different use? I’m thinking did this suspect have a city space as well that he could have promoted his own political message so he would not have felt the need to deface this one. If not is there any effort to create such as space as was done for the “I Can’t Breath” message?

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    1. Anthony,

      “Freedom of Speech” may be “the law”, however, laws are not self-enforcing.

      All that matters is the will AND the ability to enforce, period. Lacking either, laws are a waste of words.

      Also,

      Censorship is and has been alive and rampant in this country as far as I could remember.

      For too short a time I was a resident of the City of Edmonds; do to finances I reside nearby, and still enjoy spending time in the bowl.

      I am very unhappy when I read/hear government officials, whether it be federal or local take a stand against that very government, as a past president proclaimed “government is the problem” and current president continues to do.

      In my humble opinion, it is the duty of lawmakers to work to bring people together, not divide, and to work with the government, not against the government.

      Very few of us are taught to communicate in a non-violent manner. Language is fraught with unintentional mis-understandings. Symbols, art, statues, etc are even more ripe with mis-understandings. While doing my best, I often run afoul.

      I am NOT a fan of “Black Lives Matter”! Promoting “Black Lives Matter” promotes racism, period.

      The artist and others may think they believe “All” lives matter, but continue to insist … “Black Lives Matter”, otherwise they would say “All Lives Matter” AND their actions would indicate such.

      If the artist truly believes as she was quoted in the article that her art was meat to “support conversation”, and if she believes that “All” lives matter, she would lead the move to protect the Man in question from any and all prosecution for using her language, art, as a means to begin that very conversation.

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  3. Did he ask (or have the gumption to ask) for a city spot to promote “his own political message”. Makes one wonder why he chose to deface someone else’s sanctioned effort to express themselves through art.

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  4. Since this is publicly owned property (not private) he won’t be charged? If BLM who tore down our statues, none of those were charged. Right?

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  5. Seems like, if this guy is such a staunch supporter of the police, he would be so proud of his act of support that he would write a signed letter to MEN or the Beacon to proudly proclaim his illegal action to defend them. Proudly happy to pay for the consequences of his action.

    Of course he is probably not so proud of what he did in retrospect; sorry he got caught (everyone having a camera and recorder in their pocket is a good thing) and sweating bullets that his name will get out to the public. The artist is brave. The vandal isn’t. Actions always speak louder than words.

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  6. The forum for the legal process may not be what we expected; we should pursue it in the local court.
    Let us continue to demand justice by giving the accused the opportunity to appear in the municipal count.
    All legal avenues should be followed.

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  7. I am relieved that common sense did not instigate this to a hate crime. Someone here wanted to know why his name was not released, so that individuals can not harass this man and his family? The mayor knew the facts of what is needed for a hate crime, unless he never went to law school. Here the mayor played to his Democratic base to show he did something to halt all the racist acts we have in Edmonds. Insanity has taken hold in our city, and not just Seattle.

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  8. Carl I agree! I don’t want property to be defaced like it has been in Seattle, in our city!

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  9. Oh good grief..we let whole cities be destroyed and we get all in a dither over this..everybody just chill

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  10. The act of defacing that art piece is clearly racially motivated , thus it is a hate crime.
    The decision not to prosecute is a perfect example of institutional racism by the prosecutors ‘ office.

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    1. Hopefully you are not an attorney or a judge Mr. Phipps. Your comment seems to be guided by emotion and ignorance of the laws of this state.

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  11. Jeez people, it wasn’t racially motivated, it isn’t a “hate crime”, and trying to suggest that it is a hate crime only trivializes true hate crimes (I write this as someone who happens to be non-white, who was a prosecutor for 14 years, and who has personally experienced his full share of racism over the years). I am by no means the gatekeeper on “hate crimes” (nobody is), but the hyperbole on this one is dismaying.

    It was unfortunately a very juvenile act for someone who happens to be 69 .. I can only imagine that he feels very badly at this point. If he does get charged, there is an opportunity for “settlement in compromise” – if he pays the costs of fixing it (which I understand were fairly minimal), then the court can dismiss it. That would seem fair. No?

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  12. The following is an attempt at middle of the road, common sense.
    Assuming all passers by reading the words on the fence, no matter what color used and good intentions, would view it as an art piece, even with the nearby explanation and published info, does not assure that reader of the words would interpret in any other way other than an affront to the Edmonds Police Dept. I live in Edmonds, pay attention and was not aware of the project until it blew up in the news.
    If the same project had been installed on another high visibility city fence, it would not have gotten the same reaction.
    It’s disappointing to see the PC position taken by the EPD and mayor when the man stated he was trying to stand up for what he believed to be an slam on EPD. There’s no proof otherwise. Calling this a racist act is an over reaction and mob-like compared to what the man did.
    Comparing this to the tavern situation is over reach.
    Those that approved the location for the project should ask for a do over.

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    1. Mayor Nelson is an idiot. He needs to review the 2017 US Supreme Court precedent on the subject. The older gentleman’s actions were inadvisable and maybe hurtful to some, but that it not a crime as much as Nelson wants to criminalize so many of our civil rights. The prosecutor is correct.

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