In determining beyond a reasonable doubt whether lawyer William McCool committed the crime of barratry, Judge Richard W. Miller will examine several legal issues outlined by attorneys in closing arguments at McCool's trial Thursday afternoon.
As his lawyer, Janelle Carman, put it: "Mr. McCool obviously made a mistake. The issue here is -- is that a crime?"
State Assistant Attorney General Justin Ericksen said the matter is rather simple. A person is guilty of barratry if he or she "serves or sends any paper or document purporting to be or resembling a judicial process, that is not in fact a judicial process." And it doesn't matter what a defendant intended to do. "Intent is not an element of the crime," Ericksen told Miller.
McCool is accused of sending the false subpoena to a printing representative, Scott Rowland, to obtain information for a client -- who also was his girlfriend -- involved in a business dispute with the owner of Foyer magazine.
The defense pointed out during the trial that attorneys routinely don't follow all provisions of a court rule establishing procedures for drawing up and serving subpoenas, thereby rendering them legally invalid. Carman said those attorneys must be committing barratry on a regular basis.
But Ericksen countered that McCool isn't charged with breaking a court rule by sending an invalid subpoena. He sent a "false and misleading" subpoena, Ericksen said. No other attorney who testified admitted having ever issued a subpoena without a court case pending, and that's where the act turned criminal, Ericksen added.
"On its face, that subpoena resembles and purports to be judicial process in every way."
Carman cited a Washington State Supreme Court case she claims requires the prosecution to prove a defendant charged with barratry intended to intimidate or defraud someone by issuing a false document.
"There was no intimidation," Carman told Miller. "(McCool) was not trying to trick Mr. Rowland or scare him."
Carman added that, contrary to what Ericksen maintains, intent has to be taken into consideration. Otherwise, process servers, postal workers and other completely innocent people who might unwittingly serve a false document would be guilty of the misdemeanor, she pointed out.
She also said the Supreme Court has determined there's a difference between "legal" process and "judicial" process. Barratry refers to "judicial" documents issued by courts, such as writs, complaints or summonses, she said. "A subpoena simply is not judicial process."
Ericksen told Miller the court cases Carman cited aren't similar to McCool's case. And if intent does come into play, Ericksen said, he had proved during the trial that McCool wanted to get information for his girlfriend and came up with a "ruse" by sending a deceptive subpoena that "looks absolutely official."
"The defendant had no legal means to get that information, so the defendant ultimately resorted to illegal means," Ericksen said.
The defense adamantly denies that. McCool was trying to get information "by a method he believed to be legal," Carman said.
"He was wrong. That doesn't make him a criminal."