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Convicted Homosexual Pastor, Arson Suspect, Gets A "Clean Slate" If Abides By Probation


THE COURT: Mr. Sailer, what that means is if you successfully comply with the conditions set forth in the deferred sentence, at the end of the one-year period, you can come back before the Court, there will be a revised finding of not guilty, and the charge would then be dismissed.


MS. FRAZIER: My name is Cathy Frazier, and I'm the woman that was attacked by his friend [gay partner]. And to this day I still see his face right before he hit me. And I'm just here today to see that justice is done in some way. I'm sorry.

...

THE COURT: Okay. Although there is no restitution that could legally be ordered in this case, certainly if there was some way that I could require that Mr. Sailer to make restitution to Ms. Frazier, I would do it. It is just that there is not a monetary amount that I could do, I legally couldn't do that. But I wish I could.


IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
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STATE OF WASHINGTON, )
Plaintiff, ) No. 00-1-00460-1 KNT
vs. )
DANIEL SAILER, )
Defendant. )
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VERBATIM REPORT OF PROCEEDINGS
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Heard Before: The Honorable James Cayce
September 8th, 2000
1:00 p.m.

KING COUNTY REGIONAL JUSTICE CENTER
KENT, WASHINGTON

APPEARANCES:
Sue Mahoney, on behalf of the Plaintiff,
Todd Maybrown, on behalf of the Defendant.

Whereupon,
The following proceedings
were had and done, to wit:

THE COURT: Please be seated.

MS. MAHONEY: Good afternoon, your Honor.

THE COURT: Is the State ready to proceed?

MS. MAHONEY: Yes, your Honor. Ms. Frazier, why don't you come up and have a seat. We really have one matter we would like to address. Would you like us to go forward?

MR. MAYBROWN: Your Honor, for the record, Todd Maybrown appearing on behalf of Daniel Sailer. We are here for a sentencing hearing which is scheduled for 1:00. I don't have a cause number, but

MS. MAHONEY: That's all going to be put on the record.

MR. MAYBROWN: What we would like to talk about is whether or not my client should be filmed during course of the proceedings. We previously requested at other proceedings that he not because there has been a lot of publicity generated.

THE COURT: Is there anyone here from the press that wants to be heard on this? Is that a problem? I'm willing to go back in the hallway with the three of you and talk about that, if this is a problem. If it is not, we will proceed.

MS. MAHONEY: No, your Honor, I'm at your discretion. UNIDENTIFIED SPEAKER: They sent me here for a photo assignment. Like she said, I'm at your discretion.

THE COURT: Just so your understanding is, while the defendant inside the courtroom, the only filming of the defendant will be the back of his head.

UNIDENTIFIED SPEAKER: Okay. Thank you.

MS. MAHONEY: All right. Then your Honor, for the record, this is the State of Washington versus Daniel Sailer, Cause No. 00-1-00460-1, KNT. Sue Mahoney for the State of Washington, Mr. Todd Maybrown is here on behalf of the defendant, who is present in court. Also present is Ms. Cathy Frazier, your Honor, and she's the woman who was the victim in the underlying assault, and she would like the opportunity to briefly address the Court before imposition of sentence.

THE COURT: I didn't get a brief, I don't think, from the State on this. I did get one from the defense and numerous letters.

MS. MAHONEY: I'm wondering if because of the mix-up of where this was originally set, if it didn't go there, because I don't that's unusual, but as the Court is aware from Mr. Maybrown's pre-sentence report, it is an agreed recommendation.

THE COURT: Right, it is agreed.

MS. MAHONEY: Mr. Sailer pled guilty to one count of false swearing. He agreed to waive any jurisdictional or statute of limitations actually, not jurisdictional, but statute of limitations issues with regard to that. And in exchange, there is an agreed recommendation of a one-year deferred sentence, which under the statute, I believe, he is entitled to on a gross

misdemeanor based on the fact that he has no criminal history. So the State is in agreement with that.

In addition, we recommend 240 hours of community service, that he have no contact with Ms. Frazier, and we'd also ask that the community service be specifically directed to be performed at the direction of the Department or of the probation department, and outside of his church so that it is something additional.

We ask that he pay the monetary conditions, which are the Court costs and victim penalty assessment, and that he have no violation of the law during this 12-month period, and would be the recommendation of the State in this matter.

THE COURT: And in addition to the letters, numerous letters were attached to the defense pre-sentence memorandum. There were letters submitted, I guess, to Judge Aitken, one dated August 20th from a Mr. Ham?

MS. MAHONEY: Yes, there is.

THE COURT: One dated August 15th from Diana Nielson?

MS. MAHONEY: I have no copies.

MR. MAYBROWN: Your Honor,

THE COURT: August 18th from Linda Ham.

MR. MAYBROWN: Your Honor, I should say that I never received those letters, and actually one of the concerns here is Mr. Ham and Ms. Ham are my client's ex-wife and her new husband.

THE COURT: It was very clear in the letters.

MR. MAYBROWN: Well, I haven't seen them.

THE COURT: And the reason I'm bringing it up is because you all need an opportunity to see it, your client needs an opportunity to see it. Anything I have been previde to, obviously you need to be previde to.

MR. MAYBROWN: I do. I have a feeling that I would make a motion for them not to be considered given they are not affiliated with this case and their personal animosity towards my client shouldn't be something that the Court should take into account in imposing sentence.

THE COURT: Well, I have already read them, so it is not, you know, I mean

MS. MAHONEY: Well, furthermore, I don't see how they are any different than all of the other letters that Mr. Maybrown has submitted.

THE COURT: Very different.

MR. MAYBROWN: Well, assuming they are.

MS. MAHONEY: No, I'm saying but for the same reasons that Mr. Maybrown would submit those, and those are people who are not necessarily parties to this either that have the right to let the Court know their feelings on the subject of Mr. Sailer, that there can also be opposing views presented, as well. So I think that in that vein, the Court can certainly look at them, I think there is nothing to prohibit that. The State stands by its recommendation in the agreed recommendation. And certainly, although Mr. Sailer knows the Court is not bound by that recommendation, the State is certainly encouraging the Court to follow that agreed recommendation pursuant to the plea bargain.

THE COURT: I'm going to hand actually another one received I think yesterday, a second letter from Mr. Ham, so I will hand those down and I will hear further argument if you feel that those should not be part of the record and I can transfer it to another judge if that's a problem. I mean, obviously people submit things, you know, and one or two of these letters, I mean, there is things that they wanted me to sentence him for that obviously the State hasn't approved, and it would be improper. It doesn't prohibit me from reading the letters, I think, but if you have some argument that it would be inappropriate for the judge to consider those letters, I will certainly consider that argument and then the possibility of transferring it to a different judge. And please turn off any cell phones in the courtroom, or pagers. Thank you. Is there another case that we can take?

MR. MAYBROWN: I think there is another 1:00 case, I'm not sure.

THE COURT: Let's go ahead and take that at this point, then, and we can make copies of those letters if you would like.

MR. MAYBROWN: I'm not sure it is necessary.

THE COURT: We can read them right now. (Letters read by parties.)

MS. MAHONEY: Your Honor, I believe we are ready to go back on the record.

THE COURT: Mr. Maybrown, you are ready to proceed?

MR. MAYBROWN: We are.

MS. MAHONEY: I'm sorry, I just wanted to address one other comment having read the letters, if that's possible.

MR. MAYBROWN: You first.

MS. MAHONEY: With regard to the letters, your Honor, I don't think it is improper for the Court to have read them, and certainly, as I said, it is no different than reading the materials that Mr. Maybrown sent to you, some of which, for instance the polygraph, are not typical. That is certainly something I could object to in this particular case. Since we have an agreed recommendation, I would just as soon proceed with the sentencing today. However, I want to state to the Court that the reasons for this plea bargain, which I think may be important to the Court in wondering why

THE COURT: Well, I need to get first to Mr. Maybrown's issue as to whether at this point he is objecting because if it is transferred to another judge, that's something that you need to explain to the sentencing judge, so

MR. MAYBROWN: I'm not inclined at this point to make a motion for change of judge. I understand and believe that much of the material is irrelevant, false, and not of any it shouldn't be of consequence in this proceeding. But even so, having discussed that with my client, we are prepared to proceed before your Honor.

THE COURT: Okay. Go ahead.

MS. MAHONEY: Certainly, the State does not condone the actions of Mr. Sailer, however, the plea bargain was reached. As the Court is aware, the standard of proof on perjury is unique, it is different. The only other crime that bears such a high burden is treason; it is difficult. The main witnesses in this case would have been Mr. Sailer's sons. Looking at the evidentiary considerations, as well as the personal toll on the witnesses in this case, it seemed that it was an appropriate resolution to go with the agreed recommendation of false swearing. That there was a some accountability to Mr. Sailer, and that the interest of justice would be best served, and those are the reasons that we went forward. Certainly, it isn't to say that the State condones, or we would not have filed in the first place. Certainly, nothing that we can

THE COURT: But I'm I was not the judge that accepted the plea bargain, that's a done deal at this point.

MS. MAHONEY: I understand that. I wanted the Court to understand the reasons for the recommendation, though. I think that typically that is something that the sentencing court is interested in. If the Court doesn't wish me to address that

THE COURT: I'm interested in your sentencing recommendation, but you are not here before me on a perjury charge, you are here before me on a false swearing charge.

MS. MAHONEY: Correct. Which is why you have the recommendation that you do because the ultimate charge at this time is false swearing.

THE COURT: Right.

MS. MAHONEY: Which the Court is still looking at a situation where someone went in and undermined the judicial process by making a false statement. And that is the crime in which he is being sentenced today. Mr. Sailer does the State considers the fact that Mr. Sailer does have no criminal history, that the fact of conviction will be substantial for this particular man, and that certainly he should have to serve the community that basically he has wronged, and that maybe the best way he can do that is by extensive community service, which is why we made the recommendation that we did.

THE COURT: Okay. Mr. Maybrown?

MR. MAYBROWN: Thank you, your Honor. I have to say that it has been an honor to represent Dan Sailer in these proceedings, and I have filed an extensive memo and I will venture not to repeat.

THE COURT: I have reviewed everything that has been filed.

MR. MAYBROWN: I think it should be clear to the Court, and I know it is clear to many members of the community, that this is a terrible set of circumstances, and it is hard to fathom how Mr. Sailer has led himself here this day. What is clear from all of the letters that the Court has seen is that Mr. Sailer is a pastor. He has been a pastor for close to twenty years. He has spent his life helping people, he spent his life counseling people, he has done wonderful good works in this community and other communities throughout Washington. And the numerous reference letters are not like the reference letters that we are able to have presented in most cases with a case where a person has pled guilty to an offense. That's the person that Mr. Sailer is, and to say that it is irrational that he is here today is a gross understatement. It is just a terrible situation.

Mr. Sailer understands that he made a terrible mistake, and he has paid dearly for it. The publicity in the case and all of the consequences that have resulted, and the Court has seen the letters from people who are not directly affiliated with the case and they have been on a campaign of terror to try to make sure that everyone in the community and everyone who works with Mr. Sailer and every person who comes into contact with Mr. Sailer for the rest of his days will be apprised of their personal animosities towards him. But he bears the consequences and he understands he bears the consequences, and unlike so many defendants, he has already been forced to face more consequences than we would see in a case of this sort. And for that I think one of the other reasons that the parties believed that this was an appropriate resolution of this case was because it was recognized that he has suffered and will continue to suffer because of the matter.

I think it should be clear to the Court that you will never see him here again, and this is an event that has changed him and will forever change him. There were hours and hours of negotiations and discussions between myself and Ms. Mahoney before we reached the resolution that we did, and I think both parties stand here in agreement that this is a fair way to resolve a very difficult, very unusual, and very complex case. The gross misdemeanor offense is appropriate, and our request our joint request for a deferred sentence is appropriate given the fact that Mr. Sailer has led an exemplary life to this point, and this event is so very unusual and has had such great consequences. We do not object to any community service requests that the Court might impose, whether it is in a specific community away from his church, that would be absolutely fine. I have noted in my sentencing memo that Mr. Sailer has already performed countless hours of community service even since the time of his plea, and he will continue to. And whatever either probation or the Court would like him to do will be served, and the Court can be assured of that.

THE COURT: Is it accurate that he has never been convicted of a crime before?

MR. MAYBROWN: Oh absolutely, absolutely.

THE COURT: Never been charged?

MR. MAYBROWN: Absolutely. And the publicity and all that's gone on around this case has caused tremendous humiliation and tremendous difficulties for not only Mr. Sailer, but also for his children. And as I set forth in my memo, his two sons live with him and they understand what has happened to him. They understand and are fully supportive of their father, but also cognizant of all this has done for their lives and the changes that have been made. But the Court should recognize that there are on-going proceedings in the church, and Mr. Sailer will consider continue to face those on-going proceedings. So whatever sentence this court imposes, he will still have to face whatever the church elders decide after he has full proceedings in that. The charge has not been resolved as of this point, and it will be at some point, but Mr. Sailer is more than just about any defendant facing a misdemeanor type offense and is going to continue to face consequences. So I would suggest to the Court that this is a very appropriate resolution that for all of the reasons we have presented thus far, that the Court should abide by the joint sentencing recommendation, even more so than most cases. Mr. Sailer is deeply sorry for what's happened, and he very much wants to be able to move forward with his life as best as he can given all that has transpired over the last several years.

THE COURT: Okay. Thank you. Mr. Sailer, is there anything that you would like to say personally on this matter?

MS. MAHONEY: I'm sorry, did you want to hear from Ms. Frazier first?

THE COURT: Let's hear Mr. Sailer, is there anything personally you would like to say before I impose sentence on this?

MR. SAILER: Yes, your Honor. I just wanted to tell you that I'm very aware that a lot of people have been hurt in this circumstance and through all of the things that have happened. And I can guarantee that nothing like this will ever happen again. And I just want to make that as a very short statement to the Court. And I hope that you will look fairly at the recommendation that is before you today for sentencing.

THE COURT: Thank you. Yes, you wanted to say something?

MS. MAHONEY: Ms. Frazier. This is Cathy Frazier, F R A Z I E R.

THE COURT: You can feel free to have a seat, if you would like.

MS. FRAZIER: My name is Cathy Frazier, and I'm the woman that was attacked by his friend. And to this day I still see his face right before he hit me. And I'm just here today to see that justice is done in some way. I'm sorry.

THE COURT: That's okay. If you would like some time to compose yourself, you can come back in a few minutes. If you are if you have said enough, then, that's fine, but if you would like to say some more. Okay. Thank you very much. Anyone else from either side?

MR. MAYBROWN: No, your Honor, not from the defense.

MS. MAHONEY: Nothing from the State, your Honor.

THE COURT: As I have indicated, this matter comes on before me on a gross misdemeanor conviction at this time. It did start out as a felony, perjury in the first degree, which is a class B felony. The Legislature does give the Court guidance, at least at the felony level, on appropriate sentences, and there is a standard range if there is a conviction for a class B felony.

The standard range on a perjury would be six to twelve months for a first-time offender. There is perjury in the second degree, which is a lower level felony class C felony which has standard range of one to three months if there is a conviction for that. And this obviously is one step lower, a gross misdemeanor. There are also some felonies that are similar somewhat in nature to this that have a standard range actually of zero to two months in jail for false verification, for welfare, for injury and the like.

In this case, however, we do have it is not just society that is the victim, there is a real victim in the criminal case, in which she was the alleged victim, and the fact that the statement made under oath was false doesn't necessarily mean that the outcome of that case would be different. But certainly, it is very unfortunate for Ms. Frazier that this case came about the way that it did, and that the testimony at the time was not accurate. And whether ultimately that jury found the defendant guilty or not guilty, she certainly would have felt much more satisfied with the proceedings. And we can't go back and that's very unfortunate.

But Mr. Sailer does now have a criminal conviction. You have been convicted of the gross misdemeanor of false swearing. Certainly in situations like this where it is a negotiated agreement, there would need to be some compelling reason for me not to accept the bargain that has been entered into by the parties, and I, in appropriate cases, have not accepted bargains. But this certainly isn't one of those, and given the nature of the case and the clean record and history of service to the community by Mr. Sailer, I will defer imposition of sentencing for a period of one year on condition that you perform 240 hours of community service, which really is an extraordinary amount of community service. I doubt that I have seen that amount before on a case. But you are going to have to do that at a location that is approved by the probation department. You will be on probation for twelve months and be required to abide by their rules and regulations and paying the costs associated with the probation monitoring. Obviously, the community service can't be at your church where you are employed, it needs to be somewhere else. But beyond that, probation will decide what's appropriate. I will require that you pay court costs of $110, the mandatory victim penalty assessment of $500, have no criminal law violations, no contact with Ms. Frazier, and was there anything else that the State had been requesting or the defense agreed to in the negotiations?

MS. MAHONEY: No, your Honor.

THE COURT: Updated court cost of how much?

MS. MAHONEY: $1,550.

THE COURT: $1,550.

Mr. Sailer, what that means is if you successfully comply with the conditions set forth in the deferred sentence, at the end of the one-year period, you can come back before the Court, there will be a revised finding of not guilty, and the charge would then be dismissed. You could then honestly say you have not been convicted of this. If you don't comply, you come back before the Court, and if you are found in violation of any of those conditions, then the court could impose a sentence up to the maximum of one year in jail and a $5,000 fine. For future sentencing purposes, if you are ever charged with another offense and you are convicted of an offense, even if the deferred sentence is ultimately dismissed, the charge is ultimately dismissed, the sentencing Court on some new case could consider the fact of a deferral and dismissal. But for employment or other purposes, after that revised finding, you could then honestly say you have not been convicted. Any questions about that?

MR. SAILER: No.

MR. MAYBROWN: No, none, your Honor.

MS. MAHONEY: Your Honor, I have handed a copy of the written judgement and sentence to Mr. Maybrown. I believe it comports with the oral order of the Court.

THE COURT: Okay.

MS. MAHONEY: I'm also handing copy of the court clerk's rules for instructions on how to pay the monetary penalties and information on probation.

MR. MAYBROWN: Thank you, your Honor. I have reviewed the proposed judgement and sentence and it appears to comport with the Court's ruling on that, and I will let Ms. Mahoney hand it up.

THE COURT: While I'm reviewing that, would you review with your client the rights to appeal and collateral attack on the judgment?

MR. MAYBROWN: I certainly will.

THE COURT: Okay. I also agree that this does comport to my oral imposition of sentencing. I will sign the judgement and sentence adding the no-contact language. I don't think you

MS. MAHONEY: Oh, thank you, your Honor.

THE COURT: Okay. Although there is no restitution that could legally be ordered in this case, certainly if there was some way that I could require that Mr. Sailer to make restitution to Ms. Frazier, I would do it. It is just that there is not a monetary amount that I could do, I legally couldn't do that. But I wish I could.

MS. MAHONEY: Thank you, your Honor.

THE COURT: Thank you.

MR. MAYBROWN: Thank you very much.

 (Concluded.)

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