PORT ANGELES — An attorney who is campaigning to be Clallam County’s next top criminal prosecutor won’t face charges stemming from an ex-client’s accusations of sexual misconduct, a state lawyer said after concluding an investigation.
The state Attorney General’s Office, which handled the investigation of David Fox at the request of the Clallam County Prosecuting Attorney’s Office, said its investigation could not substantiate the allegations beyond a reasonable doubt because of a lack of evidence and discrepancies in the inmate’s story.
“I’m not surprised,” said Fox, a Port Angeles attorney who has announced his candidacy for the prosecuting attorney’s post now held by Deb Kelly.
“I never did anything wrong in the first place.”
Clallam County jail inmate Justin Mason, 26, told authorities in May that Fox, who was representing him at the time, masturbated in front of him in the attorney-client booth at the county jail and coerced him into showing his genitals.
Additionally, he alleged that Fox brought him cigarettes, methadone and other drugs during several late-night visits during the past four months.
Fox has consistently denied all of the allegations to the Peninsula Daily News and separately to Seattle TV station KOMO, which conducted its own jailhouse interview with Mason.
But Clallam County Sheriff Bill Benedict and the Attorney General’s Office said that Fox had admitted to authorities to masturbating in the jail booth.
Fox said the act was consensual and denied all of the other claims made by Mason, the sheriff said.
Benedict also said he wasn’t surprised by the state agency’s decision not to file charges.
“If there was a clear violation of the law, we would have arrested him,” the sheriff said.
In a jailhouse interview with the PDN on Thursday, Mason said that Fox coerced him into showing his genitals on two occasions by threatening to quit as his attorney.
“I believed him and he took advantage of my situation,” he said.
Fox said he intends to run for prosecuting attorney, a partisan office, as a Democrat. Kelly is a Republican.
Two other attorneys, Larry Freedman and Lauren Erickson, have announced their intention to run for the post as Democrats.
Filing in the race opens Monday and closes five days later.
Lana Weinmann, chief criminal prosecutor with the Attorney General’s Office, said in her investigative report that charges cannot be brought against Fox because Mason had trouble keeping details of his allegations straight.
Because of Mason’s lack of credibility, Weinmann said, a charge of indecent exposure also could not be brought against Fox for activities in the booth because it could not be proven beyond a reasonable doubt that the inmate didn’t consent to it.
Even if it the act isn’t permitted in the jail, to qualify as a crime, she said, it would have to have caused “reasonable affront or alarm.” That could not have occurred if there was consent, Weinmann wrote.
The Attorney General’s Office also considered whether to file charges of introducing contraband against Fox.
But Weinmann wrote that those allegations could not be substantiated since evidence of contraband, other than the smell of cigarette smoke, could not be found and because of changes in Mason’s story.
Mason told the PDN on Thursday that four jail visits turned sexual. He told authorities of one or two occasions, according to Weinmann’s report.
During the PDN interview, he also denied making up or exaggerating any of the claims.
“Why would I make this [expletive deleted] up?” Mason asked.
Although no charges were filed, the case resulted in some sheriff’s policy changes in the jail.
Benedict said Saturday that Fox will not have access to the private attorney-client booths since he admitted to masturbating in one of them.
Like the public visitation booths, glass separates the inmate from the visitor in the private rooms, but they also have a small slot at the bottom of the partition to allow documents to be passed back and forth.
Benedict said Fox will have to use the public visitation booths, but that the jail staff will ensure that no one other than his clients will be in the visitation area when he is speaking with them.
Fox’s late-night visits with Mason, in which the alleged sexual misconduct was said to have occurred, has also led to a change in jail policy.
Jail Superintendent Ron Sukert said attorneys will no longer be able to visit clients during lockdown, which is from 11 p.m. to 6 a.m., unless they clear it first with him.
Jail staff confirmed that Fox visited Mason four times late at night this year.
Fox said the visits did occur, sometimes at 3 a.m., but said they were only to discuss the case.
He said he does not think it’s unusual to meet a client during those hours, and is sometimes too busy to meet with clients during the day.
“In the planet that I live on, it seems completely normal to me,” Fox said.
Since Fox allegedly admitted to masturbating in the booth, Benedict said he will file a complaint against him with the Washington State Bar Association.
Mason isn’t the first person to make allegations of ethical violations against Fox.
In a March letter to the state bar association, the stepfather of one of Fox’s clients said the attorney had been sending sexually explicit text messages to his 22-year-old stepson. The letter was filed in Clallam County District Court.
Fox admitted to the PDN that he sent the messages but denied doing anything wrong.
“I violated no ethical rules,” he said when asked if he had a sexual relationship with that client. “That’s the only way I can answer that question.”
Fox, who in a previous PDN interview said he is bisexual, continued:
“Pretty much every client I ever had falls in love with me.
“I don’t seek out clients. This whole predator idea is just insane.”
He declined to say whether or not he has had a sexual relationship with any of his clients.
State bar association spokeswoman Judy Berrett said on May 28 that she could not comment on whether the organization is investigating Fox.
Fox said the bar association is conducting an investigation in response to that letter. He said he expects no penalties.
Berrett could not be reached on Thursday and Friday for comment on the allegations, which weren’t confirmed by Benedict until after Mason was interviewed.
Calls to other bar association staff members were not returned.
Fox said he believes that Kelly, and possibly even jail staff, had something to do with the allegations, and that the prosecuting attorney used them to remove him as Mason’s attorney.
In a handwritten letter to Kelly on Thursday, Fox notified her that he has his own attorney and adds, “I suggest you should hire counsel due to the possibility of civil litigation against Clallam [County] for prosecutorial misconduct.”
Fox said Friday that he has made no decision as to whether or not he will file a civil lawsuit.
He said he believes the allegations were brought forward as part of a political move by Kelly because she knew he was going to seek to have Mason’s 13 charges of witness tampering and violating a restraining order dropped.
Fox defended Mason earlier this year when he was arrested for investigation of unlawful imprisonment, stalking and harassment on Feb. 25 after a seven-hour standoff with Port Angeles police.
Mason’s charges were reduced to harassment, a gross misdemeanor, which he was convicted of in April. He was sentenced to time served.
His 13 new charges stem from alleged contact with the woman whom he was convicted of harassing.
Fox has said that he believes that the jail staff were “trying to turn him [Mason] against his attorney.” Fox said Thursday that he has no evidence to prove that.
Mason, who was convicted of harassment in April, called those claims “lies” and Kelly and Benedict have both called them “simply ridiculous.”
Kelly said she has kept herself out of the investigation to avoid a conflict of interest and had nothing to do with the allegations.
The Attorney General’s Office said that Kelly requested that the state agency handle the investigation on behalf of her office to avoid a potential conflict of interest.
Mason requested during a May 21 hearing that Fox be removed as his attorney because he was sexually harassing him. Port Angeles attorney Karen Unger was appointed as his new legal counsel.
Assuming all announced candidates file candidacy papers during the weeklong registration period, the top two vote-getters in the Aug. 17 primary election — regardless of party affiliation or incumbency — will move on to the Nov. 2 general election.
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Reporter Tom Callis can be reached at 360-417-3532 or at tom.callis@peninsuladailynews.com.
