The two candidates for Grays Harbor Superior Court Judge Position 3 discussed their qualifications with The Daily World editorial board on Thursday and differed widely in their views about a recent controversial attempted abduction case currently being appealed.
The case was decided by current Judge Ray Kahler. His challenger is David Mistachkin, a lawyer and partner with the Aberdeen firm of Ingram, Zelasko & Goodwin. Mistachkin served as a Grays Harbor District Court Judge (2015-2016) and often works as a defense attorney.
Kahler was appointed to the court last January to fill the seat of retired Judge Mark McCauley. Kahler was an attorney and former partner at Stritmatter Kessler Whelan (offices in Hoquiam and Seattle) for 21 years prior to his appointment, working mostly in the area of personal injury cases.
In August, Kahler’s ruling in the case of an accused kidnapper was strongly criticized on social media.
According to the prosecutor, the victim in the case was walking home from her job on the evening of May 16 when Isaac J. Gusman confronted the 21-year-old woman and tried to push her into the passenger seat of his vehicle, but the victim fought back and caused Gusman to flee. The victim’s description of the truck and Gusman, along with other witness accounts, led to Gusman’s arrest May 22.
On the day of the trial, Gusman asked for a bench trial, which means the judge, not a jury, would decide on the outcome.
Kahler found Guzman guilty only of unlawful imprisonment, but did not convict him of first or second degree kidnapping or attempted first or second degree kidnapping. Kahler noted that the victim testified she felt what could have been a gun pressed to her side, but she didn’t see a gun. That left him with reasonable doubt as to whether deadly force, or the threat of deadly force existed, which is required to prove the more serious charges.
The ruling would have allowed Gusman to be freed because of the time he’d already served while waiting for trial. It generated a storm of protest on social media, criticism from the victim’s family and even picketing at the Courthouse.
On Aug. 27, in response to Prosecutor Katie Svoboda’s motion to reconsider the ruling, Kahler made a new ruling, finding Gusman guilty of the more serious charge of second-degree attempted kidnapping.
In discussing the case with editors of The Daily World, The Vidette, South Beach Bulletin and North Coast News, both candidates prefaced their remarks, when asked to discuss the Gusman case, by saying legal ethical standards make it impossible to dissect the circumstances.
“It is on appeal, so in that sense it is still a pending case,” Kahler said at the outset. “I don’t think it’s appropriate to go into my decision-making, other than you are allowed to talk about what is already in the public record from the written decision I made.”
As a lawyer, Mistachkin said, he also is prohibited from “openly and publicly criticizing judges for any decision they make on the bench. So that’s why I have refrained from doing that in the course of the campaign.”
Mistachkin did, however, say that he knows a number of law enforcement officers in the county “and they are all viewing this case differently than Mr. Kahler, as do I.” He also questioned the “motivation for the change in the decision. Public outcry is a powerful thing. When there is a huge clamour, and the decision changes, you have to wonder.”
“The people’s concerns about how the case was handled — both the initial decision and the reversal of the decision — is very concerning to the community,” Mistachkin added. “I’m not going to get into the specific facts of the case or criticize the decisions that were made. I will say that when you have … people in the community concerned, and picketing outside of the courthouse … that’s a problem.”
The last-minute request for the bench trial “probably caught the prosecutor a little bit off-guard,” Kahler said, adding that as a lawyer he would often approach a jury trial differently than a bench trial.
With several different charges against Gusman — some first-degree allegations — Kahler noted there was a need to prove certain specific aspects of the allegations. “The alternative the state was preceding under in that case was the use of a deadly weapon or deadly force,” he said.
Evidence that the man had a firearm was not certain, Kahler said, with the victim reporting she had felt “a hard cylinder-like object pushed into her side.” The standard of proof in a criminal case is ‘beyond a reasonable doubt.’”
“She never saw a firearm in his hand during this encounter,” Kahler added, and a handgun was never found.
“Based on all the evidence, I believed there was a reasonable doubt there was a firearm involved.”
In reconsidering, Kahler said he looked at other cases and reviewed the elements of second-degree attempted kidnapping, which he said in his original decision would require at least a threat to use deadly force.
“Upon the reconsideration motion and upon doing further research, I found some cases where attempted kidnapping could be found without a threat to use deadly force,” Kahler explained. “It was sufficient if there was a substantial step toward committing the crime.”
Kahler said it was appropriate to reconsider the initial verdict, or for a judge to do so, “if they misunderstood the law in some fashion, and one of the parties brought that to their attention. So that was the situation here.”
Mistachkin says the most important qualification in the election is about experience. Having served as a judge at lower courts around the county and in District Court, and having been a defense attorney for several years has given him a depth of knowledge about the criminal legal system, he said.
In the Guzman case, for instance, “cases like this are very difficult. Obviously, reasonable minds can differ … but among the lawyers, among law enforcement, among the public, there are substantial questions about how that case was handled,” Mistachkin said.
The questions, he said, are: “How did the initial decision come to pass, because there was a question of whether or not the testimony was indeed sufficient to find the defendant guilty of the higher charge of kidnapping? And also, the reversal of the decision, which is probably equally or more concerning, because I don’t know if that is unprecedented.”
Asked to respond, Kahler said as a judge he has a duty to uphold and follow the law: “If you have something brought to your attention that you misunderstood, it’s your responsibility to reconsider that situation.”
Also, Kahler said he researched the process of reconsideration, which is different in a jury trial than a bench trial: “In a jury trial, the verdict would be final at the point that it is announced in court. But with a bench trial, until it’s actually in writing and signed by the judge, under the case law I reviewed, the judge is able to reconsider.”
During the hour-long session with the editorial board, Mistachkin compared his legal background — focusing on “almost exclusively a criminal defense and family law practice, that’s about 90 percent of what we do in Superior Court” — with Kahler’s background: “His former experience is a personal injury lawyer, which is about one percent of the cases in Superior Court, and most of those cases don’t go to trial.”
Mistachkin added that “he has the right temperament” to be judge. “I’m a very patient, calm person. I believe in treating people with respect. I believe in the golden rule … everybody who comes into the court needs to be treated with respect.”
As a lawyer for Stritmatter Kessler, Kahler said he handled appeals cases as well as personal injury, wrongful death and class-action civil cases. When McCauley announced he was retiring last year, Kahler said other lawyers approached him about seeking the appointment. One of those told him that “Superior Court judges, if they are so inclined, have a real opportunity to improve the administration of justice in their county — and that is something that appealed to me to be able to perform that public service.
“As a lawyer, you have an opportunity to make a significant difference in the lives of clients, but you really don’t have an impact on the broader administration of justice,” Kahler added. “So that is something that really motivated me … to seek the appointment.”
Both candidates are active in several community organizations and activities. Kahler has served on the 7th Street Theatre board for 20 years, and on the board of Evergreen Counseling Center and the Grays Harbor Economic Development council, which preceded Greater Grays Harbor Inc.; Mistachkin is currently the board president for Habitat for Humanity, coaches youth sports and annually judges YMCA mock trial championships.