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Judges lets child molester go fishing
Thursday, November 2, 2000 10:00 PM PST
By James Tedford
Printable version
E-mail this articleCATHLAMET --- Almost three weeks ago, a 48-year-old commercial fisherman pleaded guilty to multiple counts of child molestation in Wahkiakum County Superior Court.
The next day found David Tarabochia fishing on the Columbia River --- with the blessing of the court.
Although Superior Court Judge Joel Penoyar ordered Tarabochia behind bars Monday, his original decision to grant Tarabochia work release pending his Dec. 4 sentencing badly misinterpreted the law, local prosecutors say.
"The statute is very clear --- (convicted sex offenders) should not be out," said Jeremy Randolph, Lewis County prosecutor. "To play games with them, like the judge did, is bogus.
"You don't get to take your fish to prison with you. You don't go anywhere or see anyone --- you sit in jail."
Penoyar's instructions to Tarabochia: fish during daylight hours, then report to jail. During his two weeks of work release, he could have fished about 95 hours.
In the past five years, no convicted child sex offender in Wahkiakum County was granted release of any sort with sentencing on the horizon.
Until Tarabochia.
The Cathlamet gillnetter pleaded guilty Oct. 16 to two counts of first-degree child molestation, second-degree child molestation, and sexual exploitation of a minor --- Class A felonies, the most serious kind.
Tarabochia's attorney, John Hays, argued after the plea that if the court allowed Tarabochia to fish, he could earn money to pay for counseling for the female victim, who now is 14. Tarabochia admitted that he videotaped the girl over a three-year span without her consent while she was nude in the shower and while asleep.
Penoyar, who's running uncontested for his fourth four-year term as Superior Court judge in Pacific and Wahkiakum counties, agreed with Hays' argument. He said that Tarabochia could be supervised on his fishing boat, but he didn't know whether a law enforcement officer accompanied him.
"When he's on the river, he's not a threat to anyone," Penoyar said. "(Convicted sex offenders) need to be in some kind of custody, but included in that would be work release by law."
Irene Asai, Wahkiakum County deputy prosecutor, argued in court against the work release but did not appeal the judge's decision. Asai did not return several phone calls for comment.
Court documents revealed that Asai will ask Penoyar for a 12-year prison sentence, which falls at the high end of the standard sentencing range.
Under Washington state law, a convicted criminal may go free pending sentencing if the individual poses no threat to the community. But according to the chapter entitled "Judgments and Sentences," convicted sex offenders --- including child molesters --- "shall be detained pending sentencing."
Does work release qualify as detention?
According to Penoyar, it does. According to Randolph and Sue Baur, interim Cowlitz County prosecutor, it doesn't.
"'Detained,' in common parlance, is 'put in jail,'" Baur said. "And if you read the context of the statute, 'detained' means 'put in jail.' That is a totally mandatory statute."
Upon hearing that Penoyar released Tarabochia after his guilty plea, Baur responded, "Yikes." She declined to elaborate.
State law does not define detention, nor does it indicate that it includes work release.
The absence of a legal definition opens the law to interpretation, Randolph said. But during his 33 years of experience as a defense attorney and prosecutor, he has never encountered any ambiguity about what the law meant, he added.
"Work release is giving the person a certain amount of freedom in the community, which isn't what the Legislature had in mind (with the detention law)," Randolph said. "(Penoyar) certainly didn't follow the letter of the law. His interpretation of what the law is doesn't comport with any counties that I've had dealings with."
Releasing a convicted child molester before his sentencing seems unusual even in the context of similar Wahkiakum County cases, all handled by Penoyar.
In the last five years, eight men in Wahkiakum County have been found guilty by plea or conviction of sex offenses against children. In the majority of the cases, the defendants remained in jail since their initial arrest. And in every case, Tarabochia being the only exception, Penoyar locked them up after a guilty plea or conviction.
The decision to place Tarabochia on work release shouldn't raise red flags, Penoyar said. To treat defendants fairly requires that other cases be blotted out of memory, he added.
"A judge has an obligation to look at each case individually," he said. "Each case stands on its own merits."
Monday, Penoyar revoked the work release, citing the end of the commercial fishing season and police testimony that one day Tarabochia returned to jail seven and a half hours past his curfew. No one reported that Tarabochia committed a crime during that time, Penoyar said.
But to a 59-year-old Longview resident who last week mounted a campaign to get Tarabochia behind bars, Penoyar's recent decision amounts to backtracking to "save face."
Ken Spring's concern about Tarabochia's work release compelled him to contact Penoyar, Asai, State Rep. Mark Doumit, D-Cathlamet, and State Senate Majority Leader Sid Snyder, D-Long Beach.
"I see many child molesters in the news, but I've never seen people defend the molester," Ken Spring said. "Everyone's bending over backwards to help the molester. Usually people are outraged.
"The concern is more for him to keep his job than it is for the girl."
Spring's outrage stems in part, he said, from working at Weyerhaeuser Co. with the grandfather of Rima Traxler, a 8-year-old girl murdered in 1985 by a sexual predator.
In a conversation with the judge, Spring said, Penoyar justified the work release with Tarabochia's clean criminal record.
But during the last five years, half of the convicted sex offenders in Wahkiakum County had no previous criminal history, according to a court records check. No one was released before sentencing.
When a reporter asked whether Tarabochia's clean record factored into his work release, Penoyar denied it.
"The fact that he didn't have a record didn't mean there wasn't reason to be careful with him," he said.
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