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The Snohomish County Prosecutor's Office has declined to make charges against the man identified by Edmonds Police as a suspect in the vandalism of the "I Can't Breathe" artwork.

The artist who created the "I Can't Breathe" art installation in Edmonds, Christable Jamision – who is of African-American and Norwegian ancestry –quickly repaired it Tuesday, July 14, after a vandal defaced it earlier in the day. Jamison repaired her piece after the "t" in "Can't" was hit with black spray paint.

"The facts in this case, as established by the investigative record provided to my office by the Edmonds Police Department, and the applicable law, do not support the charge of hate crime offense," said Snohomish County Prosecutor Adam Cornell in a statement.

"Accordingly, the matter will be declined to the City of Edmonds for consideration of malicious mischief charges, which is supported by both the evidence and the operative legal authority.

"The underlying conduct that gave rise to this referral is shameful and distasteful. Nevertheless, we cannot advance the cause of social and racial justice by furthering an unjust felony prosecution. To do so would be unethical. Prosecutors charge crimes based on provable and credible facts and on the law as given to us by the legislature.

"My office will continue to vigorously prosecute hate crime offenses where there exists sufficient evidence to prove the crime beyond a reasonable doubt. And we will continue to advance the cause of social and racial justice while concurrently safeguarding the rule of law to both protect and preserve a more civil society."

Chief Criminal Deputy Prosecuting Attorney Matthew Baldock, in referring the case back to City of Edmonds prosecutor to review, wrote that witnesses saw the man get into a car and drive away. They were able to obtain the car’s license number and snapped a couple pictures of it with a cell phone. They provided this information to the police.”

The police were quickly able to determine that the vehicle identified by the witnesses belonged to an Edmonds resident who lived nearby, 69-year-old Richard P. Tuttle, according to Baldock.

“Two officers contacted Mr. Tuttle at his residence later that afternoon,” Baldock wrote. “When they arrived they noted that the vehicle parked in Mr. Tuttle’s garage matched the appearance of the vehicle in the photographs taken by the witnesses. The officers explained to Mr. Tuttle that they were investigating damage to the art installation.”

Baldock wrote that Tuttle told officers that he was upset with how police were being treated and upset about the location of the art installation, which is opposite the police station on Sixth Avenue South.

The fence is a frequent location for the City’s “On the Fence” art installations, and the City of Edmonds approved Jamison’s artwork and location for the site.

“When the officers informed him that two witnesses had seen him spray painting the art installation,” Baldock wrote, “Mr. Tuttle became argumentative and said something like, ‘Do you want me to clean the paint off?’ He declined to provide any further statement or answer any more questions.”

The case was referred to the Prosecutor’s Office with the request that it consider charging the defendant with a hate crime offense under RCW 9A.36.080.

To convict the suspect of that crime, Baldock wrote, the office would need evidence sufficient to prove the following elements beyond a reasonable doubt. (In addition, he added, the legal threshold for charging an individual with a criminal offense is probable cause. However, the office’s standards require that it also consider whether there exists a reasonable possibility that it could obtain a conviction at trial – requiring proof beyond a reasonable doubt – if charges were filed.

That evidence includes:

– The suspect caused physical damage to or destruction of the property of the victim or another person;

– The suspect acted maliciously and intentionally;

– The suspect acted because of his perception of the race or color or ancestry of the victim; and

– That it occurred in the state of Washington.

Several of those elements are clearly established, Baldock wrote.

“There’s no real question about the identity of the suspect. “It’s clear that he caused physical damage to the art installation; it’s clear that he acted maliciously and intentionally; and there’s no doubt that it happened in Washington.

“There may be a little wrinkle regarding the identity of the “victim” (i.e., Does the art installation belong to the artist or the City of Edmonds through the Art Commission’s contract with the artist?), but the answer to that question is mostly immaterial to my ultimate decision to decline to file criminal charges.

“Instead, the insurmountable problem in this case is the lack of evidence that the suspect’s actions were motivated by his perception of the victim’s race. The assigned detective (Julie Govantes) attempts to address this point in her report by pointing to recent articles in two Edmonds-based news outlets about the art installation, both containing information about the artist – including the fact that she is African American.

“What’s lacking in the investigation, however, is any evidence that the suspect saw or read those articles. The detective also highlights the ‘large laminated summary of the piece directly to the right of the sign’ that contains information about the artist and mentions that she is biracial.

“From my review of the photographs submitted with this referral, it appears that the summary the detective is referring to is typed in standard-sized font on a laminated 8 ½ x 14 sheet of paper zip-tied to the fence just to the right of the art installation – approximately 15 feet down the fence line from the letter “T” that the suspect spray-painted.

“Again, there is no evidence that the suspect read this summary. Ultimately, the suggestion that the suspect knew anything about the artist’s race is entirely speculative and insufficient even to establish probable cause for the referred crime. Perhaps even more problematic in that regard is the fact that when contacted by the patrol officers, the suspect offered an explanation for his actions that had nothing whatsoever to do with the artist’s race (stating that he was frustrated by how police were being treated and by the location of the art installation).

“As distasteful as the suspect’s actions may have been, they do not constitute a hate crime offense as referred. Accordingly, I am declining to file charges and recommending that the case be referred to the City of Edmonds prosecutor for consideration of malicious mischief.”