The prosecutor’s case against the chief nursing officer at Whidbey General Hospital is moving forward to a trial on April 2.
Island County District Court Judge Bill Hawkins ruled against the defense attorney’s motion to dismiss the case against Linda Gipson, who is facing a fourth-degree assault charge for allegedly assaulting a patient in May of 2014.
At the same time, Hawkins found that the attorney’s claim of prosecutorial misconduct was not frivolous — as the deputy prosecutor contended — but that the actions did not rise to a level to warrant dismissal.
Hawkins was especially critical of Island County Prosecutor Greg Banks for making comments to the newspaper about the case, saying it was “quite concerning.”
“It was not the kind of conduct the court would like to see in the future,” he said. “If it occurs in the future, the court would not hesitate to take action.”
Hawkins hasn’t made a decision yet on whether a video taken of the alleged victim earlier on the day of the assault can be played during the trial.
Hawkins watched the video, which was surreptitiously taken by a nurse’s aide, in order to determine if the recording of the patient moaning and calling out for help while strapped to a bed in a room by herself constitutes a private conversation under the law. If it was private, it might be considered an illegal recording and not admissible.
The woman was suffering from mental health issues and had been restrained in the bed at Whidbey General Hospital for days, according to court records. In the recording, she is seen restrained and calling out that she wants to get her “needs met” and that the hospital wasn’t the right place for someone with mental illness.
Hawkins asked the prosecution to present evidence at a future hearing on whether the patient could be heard outside of the room and to whom she was calling out, in order to determine if it was meant as a private conversation.
Gipson’s attorney, Andrew Schwarz of Seattle, made extensive claims about improprieties on the part of Coupeville Marshal Rick Norrie, Deputy Prosecutor Jacqueline Lawrence and Banks.
Schwarz argued that comments Banks made to the newspaper were violations of the code of professional conduct and have poisoned the jury pool. He also faulted the newspaper for reporting on public documents and public court hearings.
Hawkins agreed that he was troubled by the statements that Banks made.
Hawkins read from a January story that ran in The South Whidbey Record and the Whidbey News-Times in which Banks is quoted extensively. In the story, Banks was critical of the hospital administration for allegedly shielding the investigation of Gipson’s conduct behind a secretive “quality assurance” provision, telling inconsistent stories on the stand and handling misconduct allegations differently depending on the employee. He accused the administrators of “cronyism.”
Hawkins pointed to Rule 3.8, which is “the special responsibilities of a prosecutor.” It states that prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
Lawrence emphasized that Banks’ criticisms were largely directed at hospital administrators other than Gipson, though Schwarz argued that she and the hospital were tied together. Schwarz noted that Banks was quoted as saying that Gipson had declined to be interviewed by the police, which was also stated in the police report and reported in the newspapers previously.
Lawrence said that the hospital’s CEO, Tom Tomasino, made comments about the case in the newspapers, claiming that Gipson was innocent.
Schwarz has also been quoted, though Lawrence did not highlight that fact. Schwarz said that Gipson is innocent and that Banks and the sheriff’s office are politically motivated in going after her.
Lawrence argued that the newspaper articles are not likely to taint the jury pool. She pointed out that a recent murder trial was covered by newspapers across the state but that the court didn’t have a problem seating a jury.
Hawkins agreed that it’s extremely rare to have trouble empaneling an unbiased jury in Island County cases. Many people don’t read or remember details about cases, he suggested.
Banks did not attend the hearing. Afterward, he asserted that he did not believe he violated any codes of conduct by commenting about the hospital administration. He said that, as an elected official, he feels a duty to publicly comment about his concerns.
“I think that’s an important role I have,” he said.