Puzzling justice

Does Kimberlee McDonald's case reveal prosecutors bent on revenge or a con artist working the system?

IT COULD BE A MOVIE. A struggling young lawyer, mired in depression, steals money from her clients, is caught and confesses all. She moves out of town, pays back her victims, and becomes a respected professional in another field while keeping her past a secret. But zealous prosecutors keep pursuing her, bent on putting her in prison despite the fact that she's turned her life around.

That's what Kimberlee McDonald wants you to believe.

Prosecutors in the case tell quite a different story, one of a con woman who talked her way out of jail once already and is trying to do it again.

McDonald is a trim 45-year-old with short black hair and the appealing, confessional manner of a reformed sinner. The way she tells her story, it all started with a tragic accident. Way back in 1979, the day before McDonald (not to be confused with attorney Kimberly MacDonald of Tacoma) was to begin her second year of law school, her husband Doug was killed in a climbing accident on Mount Shuksan. That, McDonald says, was the beginning of a lingering depression.

Her mental state wasn't helped by a disastrous career choice. She finished law school but proved a "shitty" lawyer, she recounts. After failing at a couple of law firms, she decided to hang out her shingle in 1985. But that only meant she had to run a business as well as practice law, and her financial skills were, if anything, worse than her legal ones. "You have to be tougher with people than I was capable of being," is how she describes the root cause of her financial ineptitude. She says she couldn't turn down sympathetic clients with unwinnable cases, nor was she inclined to force clients to pay her promptly. She fell thousands and thousands of dollars into debt.

In a panic-stricken muddle, she says, she started dipping into the trust funds that she, like all lawyers, maintained to hold client money. The money could come from a settlement that is to be paid to a client, for example, or it could be money a client has entrusted to a lawyer to cover a disputed debt. Once she made the leap into theft, she says, she couldn't stop. A later Washington State Bar Association investigation determined that McDonald made 75 illicit withdrawals from the trust funds between 1989 and 1990, for a total of $228,000. At the same time, the bar investigation found, she was defrauding a bank by depositing checks drawn on closed accounts or accounts with insufficient funds and quickly withdrawing money. That scheme netted her an additional $106,000 in illegal funds, according to the bar's findings, which she didn't contest.

She says she used the money to pay her bills, but also, bizarrely, to give to other clients as fake settlements in cases she lost yet pretended to win. "I spent a bazillion years in therapy trying to understand that," she says. "I think I was stupid, sympathetic."

Eventually, it all came to a head when several clients realized their money was gone and complained to the bar. "I remember going to meet with the bar," she recalls, "and finally bursting into tears, saying, 'I need help, I need help.'" She says she told the bar everything and agreed to a disbarment.

SO ENDED ONE PHASE of her life and began another. Criminal proceedings were certainly imminent, but until the day of reckoning she decided to move to New York, where she had a friend who offered help. In time, she landed a job as a grant writer with the national office of the Audubon Society, where she impressed her bosses so much that they agreed to pay her way through a masters program in forestry at Yale.

It took three years for the inevitable to happen, but one day the FBI showed up, put her in handcuffs, and arrested her. She got lucky, however. The federal prosecutor was sympathetic to someone who seemed like a model of remorse. In a letter to the judge, prosecutor Deirdre Daly declared that McDonald had "made significant efforts to turn her life around," had upon arrest "immediately acknowledged her guilt," and "made substantial efforts to repay her victims." In any case, the prosecutor noted, McDonald's "primary motive" for her wrongdoing was not personal gain but "to steal from one client in order to pay another." The judge surprisingly forwent jail time and sentenced McDonald instead to four years of probation. McDonald says she continued to try to pay back as many victims as she could, scraping together about $70,000 with the help of her parents.

She managed to keep her past a secret, and so McDonald's life continued without much interruption. In 1995, she was accepted by the University of Washington's Ph.D. program in forestry. She moved back to Seattle to enroll, while continuing to work out of her home for the Audubon Society. She served for a time as the interim head of the organization's state office and was a search committee's top choice to fill the job permanently. "The chapters just loved her," says Bonnie Phillips, a former chapter head who was on the search committee. "People were very impressed with how she was able to bring people together."

McDonald's job prospects were killed, however, when Audubon, and McDonald herself, learned that King County Prosecutor Norm Maleng's office had launched another criminal proceeding for her abuses as a lawyer. "I was stunned," says McDonald. "How could this be? I thought it was all over." This time around, nei- ther prosecutors nor the judge were so sympathetic. In 1998, she was sentenced to 22 months in prison. In March, the Washington Supreme Court refused to hear an appeal of her case. Unless she can convince the U.S. Supreme Court to hear her case, she will have to go to prison soon, a prospect she finds understandably depressing.

"What I did in 1990 was wrong," she says, "But I can't be ashamed of it my entire life. I'm not that person any more."

WHEN MCDONALD is finished telling her tortuous tale, a few questions remain. How could she face two criminal proceedings for the same crime? She professes not to know the answer, or even the details of her criminal charges, but could that be true? And if it isn't, what else might not be true?

The first question is the easiest to answer. McDonald was prosecuted in the federal case only for the bank fraud aspect of her crime, not for her theft from clients, according to both state prosecutor Scott Peterson and federal prosecutor Bob Westinghouse. The feds don't have a theft statute, according to Westinghouse. Presumably, the state knew that when it ceded the case to the feds. But it couldn't have known that McDonald would get off so lightly, and the result from the federal case didn't make Maleng's office happy. "We just basically said, 'This isn't good enough,'" says Peterson. So Maleng's office took what it admits is an unusual step by bringing a new case on new theft charges.

"She brought this on herself," Peterson says of McDonald, and he stresses that there were real victims who suffered real financial hardships as a result of her actions. Moreover, he reveals what McDonald does not: While she paid restitution to the defrauded bank as a result of the federal case, most of her victimized clients received nothing.

One was Russell Fosmire, a retired real estate developer who lost $54,000. "I guess what really disappoints me is that she kept telling my attorney that she would pay everything back and she never did," he says. "Everybody felt sorry for the woman. She made a terrible mistake. The difference was, she never made any effort to straighten it out."

That runs contrary to McDonald's version of the story. And that's not the only discrepancy. Prosecutor Peterson says that he got all the records from her bank accounts and could find no evidence of her having used any stolen money to pay clients she felt sorry for. "It was a fabrication," Peterson says, one he argues she used to mitigate her crime with a federal prosecutor and others who never bothered to check. McDonald maintains she did pay clients, although she admits that she never came up with any evidence.

Finally, when McDonald tells her tale, something slips out at the end that seems odd. She says she spent seven months in federal prison for a parole violation. Characteristically, she describes her violation in a way that arouses sympathy. She lied to her probation officer about having a roommate, she says, because she didn't want to alert her roommate to her criminal past by asking for her roommate's social security number, which she is supposed to give to her probation officer. A check of the federal records, however, reveals several entirely different violations. In reality, she lied to her probation officer about being a partial owner of the house she was living in. Then, in 1997, she filed a false tax return by claiming more mortgage interest and real estate taxes than she actually paid.

McDonald had explanations, of course. The most interesting, offered in legal papers, is that she lied to her probation officer because she didn't want to reveal her sexual orientation by admitting that she co-owned the house with her lesbian lover. Still, McDonald committed another financial transgression as recently as 1997, and even now isn't exactly honest about it.

So who is McDonald really—a reformed sinner or a scam artist? This real-life drama keeps you guessing.

nshapiro@seattleweekly.com

 
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