— by Alex MacLeod —
Not long after Randy Gaylord filed sex charges against Gerald Grellett-Tinner, then an Orcas High School teacher, he signed a “Certificate of Helpfulness” on behalf of a “U Visa” request of the young immigrant woman who was the legal victim in the case.The 19-year-old mother of a young child was living with family on Orcas despite her visa having expired and she was worried about being deported.
A U Visa is reserved for crime victims who have reported a crime to law enforcement and “who have suffered substantial (emphasis added) physical or mental abuse,” “have useful information about” the crime and “have been or will be ‘helpful’ to law enforcement in order to bring the perpetrator of this crime to justice.”
If granted, a U Visa allows the individual to remain in the country legally another four years. After three, he or she may apply for permanent citizenship. It’s a rare avenue of relief from the country’s immigration laws.
The woman had revealed her relationship with Grellet-Tinner to another teacher, not law enforcement, and by no reasonable measure had suffered “substantial physical or mental abuse.” Investigative records show she was a willing participant in the relationship, had no idea it was a crime and initially had been reluctant to cooperate in the prosecution.
Even so, less than a month after learning of the illegal student/teacher relationship, records show the county already was helping her obtain the U Visa. Two months later, assured of her willingness to testify, Gaylord signed the “Certificate of Helpfulness.” Almost exclusively on the strength of her testimony, he was convicted. (All that was needed was proof of sexual contact between the teacher and a student under age 21, which her testimony established.)
Later, while Grellet-Tinner was sitting in jail awaiting sentencing, the woman told the prosecutor’s victims-assistance advocate she also had a sexual relationship with Parker, the sheriff’s deputy whose investigation led to the charges and who sat next to Gaylord at the prosecution table throughout the trial.
Dumbfounded, the assistant told Gaylord, who told Krebs, who told Parker. A day later, after several calls from Parker, the woman withdrew the claim, saying it was a lie. For his part, Parker told the prosecutor’s victims-assistance advocate that the woman was “hypersexual” and had “set up” Grellet-Tinner. He then signed a document under oath denying any improper involvement with the woman.
A Skagit County deputy was asked to investigate. Given the withdrawn claim and a denial under oath from Parker, she said it wasn’t possible to say what, if anything, had occurred. However, she added a final section to her report labeled “Curious Things,” including excessive email contacts between the two as well as “similar parallels to the student/teacher case where she tells of a relationship, it causes trouble, she recants.”
The revelations, along with later proof that the sexual relationship had occurred, led former Judge Donald Eaton to vacate the conviction and then dismiss all charges “with prejudice,” which means they could not be brought again. What had been the help provided by the woman, the basis of Gaylord’s support for the U Visa, was gone for good, largely the result of her behavior with the detective in the case.
In light of that, I asked to review any documents that related to the county’s role in her U Visa, in part to see if the prosecutor, in light of how the case had evaporated, had withdrawn the county’s support for the visa. I first asked for “Any and all written communication … to the U.S. Citizenship & Immigration Services relating to a “Certificate of Helpfulness” (CIS Form I-918, Supplement B, Non-Immigrant Status Certification).” I was told there were “No Responsive Records.”
So I tried a different approach, asking for “any and all written communication between anyone in San Juan County government and any U.S. agency pertaining to the visa status of (and here I put in the name of the woman).” Again, I was told there were “No Responsive Records.”
Since I had read a Seattle Times article about the Grellet-Tinner case in which Gaylord said he’d signed paperwork for the U Visa, I asked specifically for that record. I got it a day later. It was the “Certificate of Helpfulness” (CIS Form I-918, Supplement B).
When I asked Gaylord why it had not been produced in response to my first two requests, he said it was because it had not been “sent to” nor was it “between our office and another government agency.” Apparently, it went to the woman’s immigration attorney, who sent it to the immigration agency. In other words, he knew what I was asking for, but because I had been technically imprecise in my request, he hadn’t made the document available.
In a follow-up exchange, he acknowledged I was “correct to conclude that I did not take action to withdraw the Certificate of Helpfulness form I-918,” adding, “To assist our discussion on this topic it would be helpful to know what leads you to believe that the Certificate of Helpfulness should have been withdrawn?”
I replied that the foundation of any U Visa was immigration’s reliance on law enforcement’s validation of “significant physical or mental abuse” as the result of a serious crime, and the person’s help in bringing a perpetrator of that crime to justice. “The record in her case strongly undercuts both elements of that foundation,” I concluded.
Gaylord replied: “I do not share your perspective,” and then added that an element of a state law (to which he previously had made no reference) provided “no basis to exercise discretion to withdraw the certificate.” He didn’t point out that an earlier section of that state law, as well as the rules of the federal program, should have disqualified the woman from the U Visa program in the first place.
And there it sits. The record indicates the woman shouldn’t have qualified for a U Visa and that the prosecutor’s office simply used it as a means of securing her testimony, which was essential to its case. Had it waited to make the offer until after Grellet-Tinner was in prison, or at least convicted, it could be viewed otherwise. But Grellet-Tinner is free and the crime can never again be prosecuted.
Gaylord told The Times he does not know if the U Visa was granted, and added: “I don’t think anybody feels good about any part of what happened here.”
That is as close as he has come to conceding any responsibility for the debacle.
(Alex MacLeod lives on Shaw Island. He retired in 2003 after 17 years as managing editor of The Seattle Times. This is the second in several reports about Gaylord’s performance as prosecutor.)
Alex MacLeod, in his ongoing attempt to discredit Randy Gaylord, contends that the prosecutor should not have granted the “Certificate of Help” (entitling her to request a temporary immigration visa) on the grounds that she had not suffered substantial physical or mental abuse. In reaching this conclusion, Mr. MacLeod evidently disagrees with or misunderstands the well-recognized damage that results from a sexual relationship between an underage student and an older teacher. Fortunately, the Washington State legislature has not been so blind. The legislative history recognizes that a teacher is in a position of “trust, power, and influence” and that a young student is inherently in a more vulnerable position. By criminalizing sexual intercourse between students and teachers in certain circumstances, the legislature acknowledges that harm occurs whether it is claimed by the student, the teacher or for that matter, Mr. MacLeod. Abuse in such circumstances is implicit. That is why such conduct, consensual or not, is a felony.
RCW 7.98.020 makes it clear that the basis upon which a Certificate of Help is to be issued is “whether the victim was a victim of criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection or investigation or prosecution of that criminal activity.” In providing testimony which Mr. Gaylord relied upon to pursue the case against the teacher, the student in this case certainly was being helpful. And there is no question that she was the victim of criminal activity.
RCW 7.98.020 also states that a Certificate of Help may be withdrawn only if the victim “unreasonably refuses to provide information and assistance related to the investigation or prosecution of the associated criminal activity when reasonably requested by the certifying agency.” But the victim never refused to provide such information and assistance, nor do the actions that later took place between Deputy Parker and the victim amount to such a refusal.
Mr. MacLeod’s objection to Gaylord’s issuance of a Certificate of Help, and to his subsequent refusal to withdraw it, seems to be based more on MacLeod’s antipathy to the criminalization of consensual sex. It is obvious that Mr. MacLeod believes that the student in this case was a devious conniver who planned out a lurid plot and was willing to have her life and reputation dragged through the mud in order to achieve other ends. Her future has been sufficiently damaged.
I am not always in agreement with Mr. Gaylord, but in this matter I have no question about his decisions. Gaylord had the basis upon which to issue the Certificate in the first place, and has rightly determined that he does not have a sufficient basis to withdraw it.
Please do not put Mr. Gaylord back in office. I believe there are just way too many examples of his questionable judgement…. I’m voting for Power!
Thank you Elly!
I can’t follow this lettert all – it makes everything foggy, not more clear. I’m learning myself, in another situation I’m following, that it’s true that you have to ask for things in proper technical terms when it comes to Public Records info – it’s frustrating if you don’t know Law – but that is not grounds for the kinds of accusations being leveled by this letter and by Randy Gaylord’s opponent and his smear campaign tactics.
The young woman is being blamed; not the man, or men, who had sexual relations with her. But this is nothing new either. Women are almost always blamed as seducers, Jezebelles, as “asking for it,” even in cases of rape. In this case, it’s doubly concerning that she was an immigrant with a young child, afraid of deportation – which makes her vulnerable in ways that “born here” citizens can’t even imagine.
The only clear and concrete thing I have read so far regarding this case is Eleanor Hoague’s comment, which explains the law how it is meant to be interpreted. That’s good enough for me. I trust what she says. The rest is conjecture and spin.
If we care about the law and the fair and equal application of it, we ask:
1. What type of Visa did the young lady have that expired?
2. What were the circumstances permitting her to come and remain legally?
3. What’s the crime? Is it that the “Teacher” was having consenual sex with a 19 year old “Student?”
4. If so, why was the conviction vacated if the teacher did have a sexual relationship with a student under 21? Why would having consensual (legal) sex with a third-party Deputy impact the prior conviction in the teacher’s case? What is the Judge really saying by the (apparent) inconsistent application of the black letter law to the facts?
5. Why is consensual sex between a 19 year old mother and a deputy problematic? Need to separate issues—regardless of the sex of the parties involved.
6. Does it raise questions of motive?
7. How important do you think it is to be fast tracked for US citizenship? Is this not an obvious and possibly ilicit, duplicitous motive combined with the serious “appearance of” or “actual” conflict of interest?
Some observations:
What is the purpose of a “federal” legal expiration date on a federal or state government document, or in any context if it can be ignored and disregarded at whim with impunity? Who decides which laws to obey and which to disobey?
Is the age of consent really 16? That’s young! She was 19 when she had two affairs happening at the same time? Except for one of the parties being her teacher, or a teacher in her school— no big deal legally.
She is a mother, obtained a visa, and made it to the US and was surviving, albeit without valid paperwork in the end. She’s indeed a very resourceful human being who happens to be a mother and a woman, among many other characteristics that one could relate with more personal information.
Do we consider her status as an apparent “overstayer” of her Visa? —undocumented status when considering whether she qualifies for a U Visa? Does the law speak to that? Or is it grounds for later rejection by INS? Should it be?
If we want a certain outcome because it makes us feel better irrespective of the fair application of the law and equal treatment under the law, and equal application of the immigration process— whatever the grounds for admission—
1. Then just give her the U Visa and turn the page.
But allow for the possible admission that people who willingly support equality on the one hand and the unequal application of the law on the other may be damaging the structure and the administration of justice.
A disspassionate analysis in the application of law to fact— regardless of the characteristics of the parties involved is the goal— in order to better weed out built-in prejudice, bias and improper motive.
In the end, too much information is missing to know whether or not abuse is present but it’s apparent that many questions beg for clarification.
Chris Graham writes: “Except for one of the parties being her teacher, or a teacher in her school — no big deal legally.” Since Mr. Graham’s legal practice was in New York, he may perhaps be forgiven for being unfamiliar with the law in the state of Washington.
RCW 9A.44.093 states that “A person is guilty of sexual misconduct with a minor in the first degree when … the person is a school employee who has … sexual intercourse with an enrolled student of the school who is at least sixteen years old and not more than twenty-one years old and not married to the employee, if the employee is at least sixty months older than the student ….” It further provides that “Sexual misconduct with a minor in the first degree is a class C felony.”
Class C felonies are punishable by up to 5 years in prison and up to $10,000 in fines. This makes the incident a “big deal legally.”
Marc,
That was actually my point. That except for that fact—that she was a student under the age of 22 and he was a teacher —there was no big deal legally as the age of consent, as I understand it, for sexual intercourse in Washington State is 16, which I happen to think it’s too young.
Apparently, in all instances of consensual sex, except when it’s between a teacher and a student under the age of 22, for example, a 16-year-old young lady or man, can have sex with a person of ANY age and he’s / she’s not described legally as a “minor” with respect to that sexual encounter.
If that’s correct, then your use of the word “minor” seems a bit misplaced.
And I find it equally puzzling that if Mr Tinner were a sales clerk and not a teacher, the young lady, who in this case was 19 (not a minor in most of the world), could have been instead 16 years old and it would have been perfectly legal and proper in the eyes of the law in Washington State (not mine).
That’s bizarre to me. Again, 16 is too young where I come from and most States of this Union agree.
Chris,
He was her teacher. He had power over her. He therefore abused a position of authority. That is a big deal nowadays, not so much 30 years ago when I was in college, so I had a number of Professors manhandle me because they didn’t think it was such a big deal. I thought it was a big deal. I was afraid to say anything because no one would believe a hippie chick student over reputable professors and probably would have told me it wasn’t a big deal anyway. I got a D- in Economics for failing to put out. That is a big deal on a college transcript. Had the power over me held by the man in question been limited to how fast my groceries were checked through, my distress and the repercussions for my academic future would have been far more limited. The power differential is what separates consensual sex from coercion, which is why people get fired these days for sleeping with subordinates. You simply cannot guarantee free consent when one person has social or financial advantage over the other.
Point of information:
The age of consent in Washington is 16 yrs IF the older partner is not more than 60 months older than the younger partner. Otherwise, the age of consent is 18 yrs unless the relationship is teacher-student, in which case the age of consent rises to 21 yrs.
Thanks, Cindy.
Agreed. The teacher-student relationship like the employer-employee relationship and all other types of “power” Or “trust” relationships clearly create potentially abusive situations. Therefore, the extra legal scrutiny amd protections are needed.
Are you sure that the 60-month rule applies to those 16 years of age or older? I think that 60-month rule applies to those under 16.
I found the below.
“What Is the Age of Consent for Sex in Washington?
In Washington State, the age of consent for sex is 16 years old. At this age, a person can consent to sex with any adult, regardless of the age difference between them. Washington’s age of consent laws apply to both heterosexual and homosexual conduct.”
And, again, it’s hard for me to fathom why a 19-year-old student/mother and a teacher who are having consensual sex (which is understandably disturbing given their relationship to one another) is illegal while a 16-year-old girl or boy, for that matter, having sex with the 50-year-old man or woman is not also patently offensive in the eyes of the law. At 16 you shouldn’t be able to legally consent to sex with an adult. That’s my point. The adult should know better and be held to account.
Also, if it was legally established that the teacher had a sexual relationship with the student in his school, why did the judge vacate the conviction after learning that the student-mother was having a sexual affair with the Deputy?
What conclusions would a reasonable person draw from a set of facts like these?
Ordinarily, why should it even matter who she’s having sex with or how many people she’s having sex with in looking at the statue regarding sex with a teacher?
Was the Deputy with whom she was having a sexual affair connected to the arrest of the teacher? If so, do you find this set of facts disturbing?
What conclusions did the Judge draw that substantiated and supported his vacating of the conviction?
If vacating the conviction means a crime was not committed, what’s the significance of this legal finding in relation to all the facts known about this case?
Whether a crime has been committed in our society Is determined by a court of law. If a court of law determines that a crime was not committed, it is not for anyone else to say that a crime was committed.
Otherwise, there can never be justice in society.
… or, also, if a court of law determines there’s insufficient proof to establish that a crime was committed, then it’s not for anyone else to say that a crime was committed.
In other words, the person charged, who is presumed innocent until proven guilty, forever remains innocent with respect to this particular charge.
In an imperfect world with imperfect comprehension and understanding, we must rely on a rational application of law to the facts and not resort to emotional determinations that can never be objectively established in a rational way—lest we risk returning to the dark ages.
The fact that people continue to allow irrational emotions to determine what they understand about any given situation just further substantiates one of my theories that “evolution” applies to the external world and our physical bodies, but not so to our base human condition.
p.s.—assuming Mr. MacLeod’s rendition of the facts are correct, it would be prudent and fair to remind everyone that Mr. Tinner was finally found innocent of the charges alleged.
Perhaps observers should focus on why that’s the case?
Perhaps by doing so the fuller “reality” of what has transpired will see the light of day.
Point of clarification: He was not “found innocent.” Under the constitution, one is presumed innocent until found guilty. His case was dismissed because the court could not guarantee him a fair trial. That is different from him being found innocent by a jury of his peers.
As an immigration attorney, I find it disappointing that an issue with a Certificate of Helpfulness for a U visa is being politicized. Fundamentally, the U visa is a helpful tool for law enforcement, which as described in SHB 1022 this year, enhances crime victim participation in the criminal justice process. The visa has been around since 2000, as part of the Victims of Trafficking and Violence Protection Act, and is a valuable law enforcement tool, particularly with regard to trafficking, domestic violence, and sexual assault crimes. The justice system has created many protections for victims of sexual assault, and I can assure anyone, USCIS has plenty of requirements to make sure that assault victims actually qualify. Immigration is not easy these days. While immigration and U visas are matters of federal law, it is noteworthy that the State legislature this year passed legislation to further protect victims and make more uniform reporting processes. The process is meant to provide access to justice, and enhance our justice system, as persons out of status or otherwise undocumented can feel comfortable in participating in the justice system. Sexual assault and domestic violence crimes are frequently at the basis of U visa applications. Due to the sensitive nature of these types of crimes, victim protection is also built into the process. I therefore find this politicization unfortunate. Also, I see nothing unusual about the Prosecutor’s use of the U visa process during the course of a prosecution.
Ann—regarding your point of clarification. I think I may have created some confusion which is important to rectify.
A simple question: as we write today is he innocent or guilty of the criminal charges alleged?
He has to be one or the other in the eyes of the law. There is nothing legally in between these two options in a Democracy.
Otherwise, a “presumption of innocence” means nothing, our constitution on this point means nothing, and we live in a Theocracy, or worse, and not a Democracy.
Finally, a jury does not find a defendant innocent (forgive me if I wasn’t as clear as I should have been which prompted your point of clarification and left the erroneous impression that a “jury of one’s peers” has the legal right to find anyone “innocent” of anything—they do not and never will)—no one in this country finds anyone else in this country innocent of a crime.
That’s because our “presumption of innocence” actually means what it purports to mean.
Consequently, the Defendant walks free today.
These are facts not opinions.
If you have it any other way, then we replace our wisdom with that of our Constitution’s.
The only other systems that do this are (take your pick): Anarchies, Monarchies, Theocracies, Dictatorships, Fascist -Thug Regimes and the like.
I’m not sure why my comments on this subject continue to be censored and removed? These are important civic facts about our Democracy. They are true, not inflammatory, and the words do not lead to acts of violence or imminent danger. Sometimes our constitutional protections upset others; still, that’s no reason to wrongly silence those with whom you disagree. If you disagree with the content, then disagree with the content. Don’t attack the messenger. It’s the Constitution, not me. By silencing me on this point you leave Ann’s impression as the record and it implies the wrong take-away. A “jury of one’s peers” can never and will never “find anyone innocent of a crime.” Are these words too dangerous to read?
Scott–I thoroughly appreciate your perspective.
Your perspective is one that is generally supported by us all, me included, and is considered in today’s currency as the most politically correct perspective.
But—I would only ask is that you ground your comments in the discovered facts and consider the following:
What in today’s climate gets little attention, or worse, no serious consideration, is the possibility that people actually can have improper motives and improper intentions and as a result of these improper motives and improper intentions other peoples’ lives can be destroyed. That’s why we have facts and are supposed to be guided by them. That’s also why we have a Constitution that presumes a person is innocent until proven otherwise.
Would you mind incorporating the discovered facts into your comments and tell us what you think?
Chris G, It’s my hope that you & other frequent and loquacious posters contribute generously to Orcas Issues, for obvious reasons.