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Sexual misconduct allegation results in state trooper's resignation

Dave Leary's 15-year career as a Washington State Trooper ended with his resignation last November during a State Patrol internal affairs investigation regarding a claim of sexual misconduct with a Lower Valley teenage girl.

Leary was contacted for his response to this story. "I have no comment," he said.

Leary, who served in the State Patrol's Sunnyside detachment, has since returned to law enforcement as a full-time officer for the Granger Police Department.

The girl, now 20 years old, who will be referred to as Jane since she wished to remain anonymous for this story, said Leary became a friend to her and her family after she met him in the summer of 2002. She was 16 at the time.

"I could tell him my problems and he'd give me advice. He was easy to talk to," Jane recalled. She said they began talking more and more, "hanging out and going to lunch."

"Hanging out" included shopping trips to the Tri-Cities, Jane said. "There were times my mom questioned it, because I would go to Tri-Cities with him to go shopping and a couple of my friends would come along," she said. "I'd tell her, 'no mom, everything's okay,' and she'd believe me."

On one occasion she said her mother talked to Leary about the relationship. "She thought there had to be something going on," Jane said. "He reassured her that nothing was going on and that he would never do that to them or me, he respected them too much to do something like that."

Relationship 'escalated'

Jane said her relationship with Leary "escalated" when she asked him for a bear sticker, an emblem usually reserved for family vehicles of State Patrol troopers.

"They're usually for family members," she said. "If you get pulled over they give you a break."

Jane continued, "I wanted one because I was a teen and I wanted to speed and not get a ticket. He said if he were to give me one, then I would have to do him a favor." The favor, she noted, was sexual.

"I told him no several times," she said. "I wasn't like that at all, I was scared for a long time. I tried to talk him into giving me the sticker," she added. "I was pretty much determined to get that sticker."

In late December 2002 or early January 2003 Jane said she finally consented to sexual intercourse with Leary. "I'd ask about it (the bear sticker) again," she said. "Eventually I just gave in. I wanted the stupid sticker so bad."

An indication of the escalating relationship between Jane and Leary is evident in e-mails provided to the Yakima County Sheriff's office during an investigation of Leary for sexual misconduct.

In one of the e-mails, dated Jan. 23, 2003, Leary provides advice on how to deal with personal relationships and closes by saying he loves her, too.

That was in response to an e-mail from Jane the same day in which she joked that she thought Leary was sexy.

In an e-mail dated Jan. 27, 2003, Leary addresses Jane as "gorgeous" and notes "As far as my attraction to the female rear, well it's difficult to explain. I just find it and (sic) incredibly sexy body part. Yours especially."

Later, in the same e-mail, Leary wrote, "Sorry I didn't call last night. Got a little busy. No its (sic) not what your (sic) thinking. I wish it had been. Its (sic) been a few days and I'm starting to feel the tension building. Talk to you tonight."

In a possibly related statement Jane later made to the sheriff's office, she reported that on one occasion Leary said he "needed to relieve himself and he asked me if I would do him a favor and I didn't."

In the same statement to the Sheriff's office, Jane stated that Leary said if she had the bear sticker then she wouldn't get a ticket if she was pulled over. "He used that to kind of bribe me into having sex with him," she stated.

Jane said she and Leary had sexual intercourse two or three times. Once was while he was in uniform, she claimed, and all the encounters were in the bathroom of the basement apartment he rented from Sunnyside Police Detective Jim Ortiz.

Ortiz confirmed that Leary lived in his basement for about two years. "I saw him there with some friends, with a girl, but I never asked for ages," Ortiz said.

Though Jane says the sex was consensual, she noted, "I feel I was manipulated to do it because I wanted that sticker and he wouldn't give me that sticker unless I did."

The bear stickers do exist, confirmed State Patrol Sergeant Dave Robinson of the Yakima detachment. "They are for state trooper association members," he said. Robinson said the sticker does not hold any special authority, and compared it to the window or bumper stickers members of fire departments place on their vehicles.

The sticker does not prevent motorists from getting ticketed for speeding, he added.

"They're absolutely no different than any other sticker," he said. "I've stopped many of them as a matter of fact."

Jane said she began limiting contact with Leary by August 2003, but she said he still found ways to initiate contact.

"He would pull me over on purpose just for a laugh or to say hi," she said. Leary also drove by her school while she was in softball practice during the Spring of 2004, flashing the lights of his patrol car.

"There was a situation where he did a couple of improper things," said the principal of the girl's high school. "He visited her several times before softball practice, put on his lights and sirens," the principal said. "Two individuals in suits came down and spent a good hour and a half with me," the principal said. "Then I got a call from the State Patrol on an internal investigation."

No charges filed by Yakima County Sheriff

The principal's comments reflect a criminal investigation conducted by the Yakima County Sheriff's office, as previously noted, and an in-house internal affairs investigation conducted by the State Patrol.

Both began when the girl, at the encouragement of her then-fiancee, filed a complaint with the State Patrol in March 2005 on charges of manipulation of a minor and sexual misconduct.

Jane said she told her fiancee, whom she has since married, about Leary in the summer of 2004.

"From there he made me tell my parents," she said. "They wanted me to turn him in."

The criminal investigation wrapped up in June 2005, with no charges filed.

"We considered the potential charge of sexual misconduct with a minor in the first degree, based upon the victim's age," Yakima County Deputy Prosecuting Attorney Patti Powers wrote to the Sheriff's office.

A primary difficulty with the case, Powers noted in a document released to the Daily Sun News following an information request, was that Jane was older than 16 years old at the time of the intercourse, which is the age of consent. The only way Leary could have been charged was if he was responsible for her health, education or welfare.

Powers wrote that the first degree charge was not pursued because "it did not appear that there was sufficient evidence that he became engaged in a supervisory relationship as required by the statute, i.e. voluntarily undertaking to provide for her health, education or welfare."

Powers noted there may have been potential abuse of the relationship since it was alleged that the teen "agreed to have and did have sexual intercourse with him" in exchange for the bear sticker.

Powers concluded, "Third degree rape is not, in our estimation, a potential charge at this point due to information that the victim is able to provide. It does not appear that she in words or conduct communicated her lack of consent to the sexual intercourse, at the time, although she provided information that she previously told him she did not want to have sex with him."

Noted Jane, "He knew the law, he knew the age of consent was 16 and that he wasn't going to get in trouble."

The State Patrol's internal investigation began after the conclusion of the criminal investigation by the Sheriff's office.

That investigation had been ongoing for nearly six months when Leary resigned on Nov. 29, 2005.

'Handwriting on the wall'

"I thought, you guys probably told him he was going to get fired so he could resign and get another job," the girl said of her first thought when she heard from the State Patrol that Leary had resigned before the investigation's conclusion.

So, did Leary quit before he was fired?

"The assumption is not that far off," said Lieutenant Jim Keightley of the State Patrol's Yakima office. "We were reaching the end of the investigation, he sees the handwriting on the wall and says 'I'm going to quit'."

Keightley added, "This employee chose to resign prior to being formally terminated, is what it comes down to. Because we hadn't reached a formal conclusion, he had that option."

Lieutenant Chris Gunderman runs the State Patrol's internal affairs unit in Olympia, and affirmed that Leary would have had an idea of the disposition of his case.

"Our investigation target time is 120 days," Gunderman said. "If it goes beyond that we have to file an extension." He added that Leary would have known about the extension.

During internal affairs questioning of cases such as Leary's, Gunderman said the State Patrol could require him to answer all questions, without the opportunity to plead the fifth amendment.

"There's no deceit, no punches pulled, all the cards are on the table," he said. "They (the patrol officer being investigated) are going to have a pretty good grasp of what we have."

Further, troopers under investigation have access to a union representative to guide them through the process, Gunderman added.

"They are entitled to representation with a union rep, who also gives them advice concerning the administrative investigation," he said. The union rep can also share their opinion, noted Gunderman, "on discipline parameters they (the trooper) could face."

Leary's investigation was still in the internal affairs portion of the State Patrol's administrative research at the time he resigned.

"It hadn't gotten to the point of a proven finding," Gunderman said. Internal affairs, he noted, is a fact gatherer that forwards a report to an appointing authority. Had Leary not quit the patrol, his case would have went to an appointing authority, who would have reviewed the case and made a determination.

Since Leary quit, the case was dropped and all files sealed.

"There was no investigation to complete, none of the information is disclosable," Keightley said.

Previously disciplined for actions with Granger woman

The State Patrol wasn't able to release information about the dropped investigation with Jane, but an information request turned up an earlier State Patrol investigation on Leary.

In September 2001, Leary was penalized with the loss of two days of annual leave for unbecoming conduct and having a patrol car rider.

The charges stemmed from contact Leary had in May 2001 with a 19-year-old Granger woman, who was a gas station attendant.

The woman's father and husband notified the Washington State Patrol when she was out with Leary until 1:30 a.m.

Leary and the woman, who had a one-year-old baby, repeatedly met while he was on duty. Both stated they hugged and kissed on one such meeting while parked at the end of Indian Church Road.

"The total number of on-duty contacts and the length of the meetings is impossible to determine, being these were mostly not documented," State Patrol Captain David J. Karnitz wrote in a report to Captain Lowell M. Porter, Office of Professional Standards for the patrol.

"However, there are many lengthy gaps in time recorded on both Leary's time and activity report and on the communication logs," Karnitz continued.

Leary even had the woman ride along during a high-speed response to an accident scene, the State Patrol's investigation found.

"Leary's conduct illustrated remarkable poor judgment. He put himself and the department in an embarrassing and risky position," Karnitz noted in his report. "Strong argument can be made that he violated numerous other departmental regulations, including immoral conduct, neglect of duty, radio procedures, unsatisfactory performance, abuse of position and code of ethics."

Karnitz concluded, "He spent time during his shifts pursuing his romantic inclinations with a 19-year old, married woman. He left his primary area of responsibility to rendezvous with his girlfriend and hugged and kissed her."

Karnitz defended the two-day loss of annual leave as "progressive, nondiscriminatory and free from anti-union sentiment."

With that said, how is it possible Leary could be back in uniform? Particularly in Granger, the site of his misconduct in 2001.

'A vendetta issue'

Granger Police Chief Robert Perales said he was unaware of the 2001 investigation into Leary's actions with the Granger woman.

"You know more than I do," he said. "Once an officer is disciplined we consider the matter closed. If it happens again I would look into it."

Perales and the Granger Police Department could have known about the investigation with an information request.

Doug Blair of the state's Criminal Justice Training Commission said there is internal information that can be made available when a law enforcement agency is seeking to hire a prospective employee.

"Generally, there is a state law on certification requiring an agency to submit a termination notice on every officer who leaves within 15 days," Blair said.

Some agencies use a waiver form signed by prospective employees that can allow a more thorough search of previous law enforcement conduct. The waiver could also allow a prospective law enforcement employer to look into dropped investigations, like Leary's alleged sexual misconduct with the anonymous Lower Valley teen.

Waiver or no waiver, Perales and Granger are aware of Leary's alleged involvement with the girl.

"Those things were thoroughly investigated and unfounded," Perales said. "The Yakima County Prosecutor's office wasn't going to proceed with it any further. There was no action filed."

Perales said he has been called by the girl's family regarding the affair she said occurred.

"The family is pushing it," he said. "I see it as a vendetta issue. The investigation is concluded, there's no further criminal action taken. They're just having a hard time letting go of it."

Leary's hiring is the second officer Granger has hired in the past few months that have what some may see as a questionable past.

Former Sunnyside police officer Jose Trevino, since hired by the Granger Police Department, was arrested in October 2005 after a charge of domestic violence. Trevino resigned from Sunnyside and his case is technically still pending, per a six-month continuance.

Michael Laws of the Yakima County prosecutor's office said if Trevino does not comply with terms of the continuance, then an actual trial will proceed.

"Everybody's human," Perales said of hiring Trevino and Leary. "People are innocent until they are proven guilty. Anyone can be accused of anything. Stuff like that shouldn't be held against anybody."

'It's ruined my life'

With no recourse from either the State Patrol or Yakima County-and with Leary back in uniform-Jane said she now regrets telling anyone about him.

"I feel like I never should have said anything anyway, because nothing did happen to him," she said. "It blows me away. I feel like now it was just a big waste of time. Now some people know about it and he's still a police officer." Jane continued, "I still don't get why he wasn't charged criminally, I was 17 and he was 42 or something like that."

She added, "I feel it's kind of ruined my life. It's a huge regret. I can't believe I let him manipulate me like that."

Jane, who lives with her husband in Sunnyside, said there are still impacts from her sexual relationship with Leary.

"I held back from telling people. I didn't tell my husband until a year into our relationship. He was upset because I didn't tell him and that caused huge trust issues," she said. "It's a huge secret I have to keep from all my family. I planned on hiding it forever, but I just couldn't. I had to tell someone."

'I don't want him to get away with this'

Surprisingly, a case such as Leary's "is not that unusual," according to Keightley.

Noting the State Patrol has 2,000 employees, he said, "We do have issues that come up, but we take pride on them not coming up as often as other agencies."

Keightley said the State Patrol is very careful in how it conducts in-house investigations, and that six to eight months is not uncommon for an investigation.

"I'm not saying we do it the best way, but we're very careful about keeping the criminal and in-house separate."

As to Leary's opportunity to get back in uniform so quickly, Keightley added, "Once a person resigns, they are no longer our employee. Whoever wants to hire them in any capacity has nothing to do with us."

But it means everything to Jane.

"I don't want him to get away with this," she said. "It leads me now to think, well, what about our other police officers? If they're hiring some guy who was investigated for doing something with a young teenager, who else do they hire that does things like that, just because they weren't charged criminally?"

She sighed, "I have no trust for cops anymore at all."

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