© The News Tribune Judge's 22-year-old arrest surfaces in Pierce raceTollefson vs. Cuthbertson: Is raising misdemeanor conviction a last-minute smear or a serious issue?
Karen Hucks; The News Tribune, October 25, 2001
Two weeks ago, the biggest issue in the Pierce County Superior Court judge's race was whether former judge and challenger Rudy Tollefson could convince voters he'd learned from his mistakes.
Now, that's changed.
Tollefson, suspended from the bench last year because of misconduct found by the Judicial Conduct Commission, has turned attention to his opponent, Judge Frank Cuthbertson.
He recently began accusing Cuthbertson of not revealing a 22-year-old conviction linked to a fatal shootout between communists and the Ku Klux Klan.
Cuthbertson, who brought Tollefson's allegation to the attention of The News Tribune, says he was never at the shootout and was arrested a week later trying to get to a funeral march. He said he believed the misdemeanor conviction had been wiped from his record and no longer was relevant.
The News Tribune found no evidence that tied Cuthbertson to the shootout.
Cuthbertson says Tollefson is acting out of desperation so close to the Nov. 6 election.
"He's ashamed of being removed" from the bench, Cuthbertson said. "... So he's trying to deflect that stuff and talk about things I was involved in years ago, even to the point of misrepresenting what happened."
Tollefson says he's raised a legitimate issue.
"I don't think a criminal conviction is tangential to a judicial race," he said.
Specifically, Tollefson has tried to connect the then-25-year-old Cuthbertson to a 1979 gun battle between communists and white supremacists in Greensboro, N.C. Five communist activists were killed in the shootout, which has become known as the Greensboro Massacre.
Tollefson has produced no evidence Cuthbertson was there that day. The News Tribune checked newspaper articles, a book written about the history of Greensboro and interviewed a reporter who has covered the story since the shootout. None mentioned Cuthbertson.
Cuthbertson acknowledges he was charged with a weapons violation the week after the gun battle when he drove to Greensboro for the funerals of the slain activists. He says he was a community organizer and knew the five through Duke University and his anti-apartheid activism.
"The bottom line is," Cuthbertson said, "I'm not ashamed of knowing those people. I'm not ashamed of opposing the Klan. I'm not ashamed that I went to the funeral."
Cuthbertson was arrested for carrying a rifle in his car. In most circumstances, that wouldn't be illegal but was at that time because a state of emergency had been declared in Greensboro, giving police the right to search people and vehicles for weapons.
Because he was living 550 miles away in Alabama at the time, he said, he did not know about the state of emergency in North Carolina.
Cuthbertson said that, as a black man doing civil rights work in the South, he worried about getting hurt "all the time" and frequently kept a rifle in the trunk of his car for self-defense.
Because of the resurgence of the Klan in the 1970s, he said, his sense of danger was heightened, especially that day, as people feared more violence from the KKK. So, he took his rifle with him.
Cuthbertson said he was not required to disclose the misdemeanor weapons charge because he believed it had been dismissed and wiped from his record after he completed a deferred prosecution agreement.
Whether Cuthbertson's record is clean is a matter of debate.
The only court record left - a single card in the state archives in Raleigh, N.C. - indicates Cuthbertson's misdemeanor remains, said Howard Neumann, assistant district attorney for Guilford County, which includes Greensboro.
"It shows that on Jan. 4, 1980, this guy pled not guilty, and that he was found guilty," Neumann said, reading from the court document. "He was given a 12-month sentence, and that was suspended ... and he was ordered to pay court costs. They were never paid."
An arrest order for Cuthbertson was issued in 1980. He said he never received it.
Cuthbertson's sentence was suspended as long as he didn't commit another crime in the next five years. Neumann said that as far as he can tell from the paperwork, Cuthbertson never reoffended.
Neumann said a suspended sentence is different from a deferred prosecution. With the latter, the charge is never prosecuted and eventually dismissed if the person stays out of trouble for a set time. If the charge were dismissed, the court record would include that fact.
The assistant district attorney characterized Cuthbertson's run-in with the law as "such a piddly little thing."
Cuthbertson was appointed Pierce County's 21st judge in January to a new position. Tollefson ran for office last year while suspended and lost to Katherine Stolz. He now is challenging Cuthbertson for the judgeship.
The Washington State Supreme Court suspended Tollefson in 2000 after the state Judicial Conduct Commission found he had violated judicial conduct standards.
Tollefson admitted inappropriately launching his own investigation into a child-custody case, angrily screaming at and chasing a court reporter through the County-City Building and verbally abusing another judge.
Tollefson said he first learned about Cuthbertson's past after someone tipped him to a 1980 right-wing missive - "Red Tide Rising in the Carolinas" - that had been posted on the Internet.
Tollefson raised the Greensboro issue publicly in two recent candidate forums - in Gig Harbor on Oct. 11 and in Lakewood on Oct. 18.
During one of the forums, Cuthbertson said, "He accused me of being part of the Nov. 3 incident. He accused me of being involved in the shootout with the Klan."
In an interview, Tollefson responded that he'd said Cuthbertson "was part of the incident."
In Gig Harbor, Tollefson loosely connected Cuthbertson to the shootout in front of about 20 Chamber of Commerce members.
He went further at a forum sponsored by the grass-roots community group Lakewood United. Tollefson used the five minutes allotted to introduce himself to the approximately 40 audience members to detail his accusation of Cuthbertson's conviction.
Tollefson read from the photocopied court record from Raleigh and used the date of the shootout, Nov. 3, 1979, Cuthbertson said. In fact, he said, the court record notes the date of the funeral march, Nov. 11, 1979.
Tollefson said he didn't remember using that date specifically.
Some of those who attended the two candidate forums said Tollefson's tactic backfired.
"We never did clarify if (Cuthbertson) was actively involved or if he was there to see a friend," said Ron Jones, chairman of the Gig Harbor Chamber's Legislative Affairs Committee. "It did make Rudy Tollefson look petty and cheap."
Jones said he hadn't supported either candidate before the forum, but that Tollefson gave him good reason to vote in the race - for Cuthbertson.
In Lakewood, the crowd reacted similarly, according to three people who attended the meeting.
"I think it kind of showed what Rudy has deteriorated into," said Hugh Hedges, who supports Cuthbertson and was the only of the three willing to be named.
"It was hopeless," said Hedges, president of the organization that sponsored the forum. "It was obvious he doesn't belong on the bench."
The two other attendees said Tollefson seemed to lose support at the meeting. One left wishing there was another candidate for judge.
Tollefson said Cuthbertson should have disclosed the Greensboro matter to those who endorsed his campaign, as well as to his law school, the Washington State Bar Association and the governor's judicial appointment counselor.
"He seems to always be bringing up integrity in this race," said Tollefson, adding that not disclosing a conviction shows a lack of integrity.
Neither a misdemeanor nor a felony conviction would necessarily disqualify someone from getting a law degree or being a member of the state bar association. The state constitution requires that judges be licensed to practice law here, which means passing the bar exam and becoming a member of the bar association.
Cuthbertson filled out three applications that included questions about criminal convictions, arrests or both.
* The application to Seattle University Law School - formerly the University of Puget Sound Law School, where Cuthbertson was graduated in 1993 - asks whether a person has been convicted of a misdemeanor or a felony.
* The current state bar association application asks applicants whether they've ever been "cited, arrested, charged or convicted for a violation of any law, including minor traffic violations."
The application might have been slightly different when Cuthbertson applied to the bar, but has always included a question about criminal history, spokeswoman Judith Berrett said.
* The governor's application for a judicial appointment asks applicants to disclose convictions other than traffic offenses under $100, and whether they've ever been involved in any other legal proceeding.
Cuthbertson said he didn't disclose the Greensboro incident on any of the applications because he thought his record had been cleared.
He said that before he went to law school, he had an investigator and the Guilford County clerk's office check on whether he had a criminal record. Both responded that he did not, Cuthbertson said.
Officials with the law school and the governor's office said it didn't matter that Cuthbertson omitted the Greensboro arrest on his applications.
"All I can say is, had it been disclosed, we wouldn't have cared," said associate dean Donna Deming, who wouldn't confirm whether Cuthbertson had disclosed the incident.
Many of the school's students during the 1980s had been arrested at demonstrations, she said.
"We like social activists in law school," Deming said.
Everett Billingslea, counsel for Gov. Gary Locke, said the Washington State Patrol checks the criminal background of all candidates for judicial appointment, and Cuthbertson's came back "completely clean."
And, the Locke aide said, even though Cuthbertson didn't declare the Greensboro arrest on his application, he did talk to Billingslea about what happened there. Billingslea said he thought the governor knew of Cuthbertson's arrest, but wasn't sure.
In addition, the fact that Cuthbertson had been a civil rights organizer in the South was a plus because it showed strength of character, Billingslea said.
The only official repercussion might come from the bar association, whose application states, in capital letters, "THERE CANNOT BE TOO MUCH DISCLOSURE."
The association doesn't check whether applicants are honest about their criminal record, Berrett said. However, she said, if an applicant fails to disclose an incident, it might be investigated. If a violation is found, punishment could range from censure to disbarment.
"Each individual case would be different," said Berrett, who would not comment specifically on Cuthbertson's application. "(The association would ask:) How severe is this? What impact does this have on a person's ability to practice law in an ethical manner?"
As the election nears, Cuthbertson's campaign had raised $53,709 as of Oct. 19, about 12 times the $4,479 Tollefson had on Oct. 18.
Cuthbertson also has a long list of endorsements, including the entire state Supreme Court and all but two of the county's Superior Court judges, with one of those two making speeches in his behalf. He also has been endorsed by the governor, the county prosecutor, the sheriff's guild, the local police union and several defense attorneys.
Tollefson said he wasn't sure he had any endorsements.
Cuthbertson said that if the campaign becomes solely about Greensboro, then Tollefson wins.
"He wants this campaign to be about 20 years ago," Cuthbertson said. "I think it should be about what he's done and what I've done on the bench."
Tollefson said the question is whether the public has a right to know about a person's past.
"I guess that's a question for the public to answer," he said.
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* Staff writer Karen Hucks covers Pierce County courts. Reach her at 253-597-8660 or karen.hucks@mail. tribnet.com.
© The News Tribune
10/25/2001