Yakima Prosecutors File to Dismiss Appeal in Harper Case

May 22, 2014

On October 12, 2012, the Yakima County Prosecuting Attorney’s Office entered into a cooperation agreement
with Kevin Harper, which resulted in an agreement that Harper would plead guilty to reduced charges in return
for his cooperation in the investigation of the deaths of William, Pauline and Elizabeth Goggin. This action was
necessitated by the fact that the Prosecuting Attorney’s Office received previously undisclosed evidence
(statements by neighbors and advised that a recording of vehicles entering and exiting the development at the
relevant times had not been saved or copied), both of which had a significant impact on the case against Harper,
and the receipt occurred after the trial had commenced. The Prosecutor’s Office later filed a motion to revoke
the cooperation agreement and reinstate the prosecution of Harper for the Goggin murders. On September 9,
2013. Judge Ruth Reukauf denied the Prosecutor’s request for withdrawal of Harper’s plea. Harper was then
sentenced to a term of imprisonment.

The Prosecuting Attorney’s Office reviewed the written decision completely and carefully, and believed the
Judge erred. The Prosecuting Attorney’s Office believed that the unprecedented attack on the Prosecuting
Attorney’s Office without a factual basis; and the evidentiary rulings of the Court were made without the
appropriate evidentiary hearing, and comments directed at the Prosecutor’s Office, unnecessary for the decision;
reflected an unwarranted abuse of judicial discretion and decision making. We were deeply troubled by the
decision and its consequences, and sought judicial review of the decision.

The State’s appeal is still pending and we continue to believe our appeal has merit and would eventually be
successful in obtaining a reversal of the erroneous decision of the trial court. However, in light of the recent
Supreme Court decision in State v. Fuentes, it is the State’s opinion that the Fuentes decision would likely result
in a dismissal of the refiled murder charges. The dismissal would be based on detectives of the Yakima County
Sheriff’s Office having listened to privileged jail calls between Harper and his counsel. The Supreme Court
held in Fuentes that eavesdropping on privileged telephone calls is “presumed to cause prejudice to the
defendant unless the State can prove beyond a reasonable doubt that the eavesdropping did not result in any
such prejudice.” Fuentes involved listening to calls after a jury verdict. The Supreme Court seems to indicate
that given the opportunity to review a case where the eavesdropping occurred pretrial, such as occurred in
Harper, it would conclude that such conduct was prejudicial, and there is no rebuttable presumption, as in
Fuentes, leaving dismissal of charges as the only remedy.

Without having the ability to listen to the content of the calls, the State cannot establish that the investigating
detective did not use the information obtained from the calls to further the investigation; alter the scope of the
investigation; or obtain other information or evidence as a result of listening to the calls. The State ‘s position is
further undermined as the investigating detective who listened to the calls was the lead detective and remained
active in the investigation after the calls were listened to; and certain actions taken or not taken during the
investigation may well have been as a result of information gathered during the calls.

While no one is satisfied with the results of this case, a reversal and remand for a new hearing on the issue of
the cooperation agreement, and possible reinstatement of the original charge, might have resulted in a dismissal
of all charges and allowing Harper to be released without any conviction or having to serve any jail time. This
result would be more offensive than the plea deal the State had to make as a result of the late disclosure of
material evidence to the Prosecuting Attorney’s Office.

Based on the foregoing, the Yakima County Prosecuting Attorney’s Office has today filed the necessary
paperwork to dismiss our appeal in the Harper case.

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