In a rare move, Island County Superior Court Judge Vickie Churchill publicly expressed displeasure Thursday at a plea bargain worked out by Prosecutor Greg Banks in a vehicular homicide case, but she ultimately accepted it.

“This case has concerned me for quite some time,” Churchill said before describing closed-door dealings between her, Banks and defense attorney Jill Bernstein of Bellingham.

Oak Harbor resident Robert Whelchel pleaded guilty in November to vehicular homicide in the 2005 death of 21-year-old Christopher Kadrlik. According to a police report, an analysis showed Whelchel’s blood-alcohol content was at twice the legal limit.

In the end, Churchill sentenced Whelchel to the three-year sentence recommended by both the prosecution and defense.

Whelchel wept in court and apologized profusely to Kadrlik’s mother, who was listening in on a conference call.

“There is nothing I can say to bring your son back,” he said. “All I can say is I’m sorry.”

Whelchel’s trial was supposed to begin the week after Banks was reelected in a contentious campaign. Instead, Banks and Bernstein worked out a last-minute plea bargain for Whelchel, who was in the Navy at the time of the accident.

If Whelchel had been convicted as he was originally charged, he would have faced up to five years and five months in prison.

Banks originally charged Whelchel with two alternative “prongs” of the vehicular homicide statute in order “to cover all bets,” he said. One prong is for reckless driving, which is the charge that Whelchel pleaded guilty to. The other prong involves impaired driving and is a more serious crime with a greater standard sentencing range.

Churchill openly questioned Banks as to why he made the plea bargain.

Both Banks and Bernstein said Whelchel was extremely remorseful and took responsibility. Whelchel even wrote an apologetic letter to Kadrlik’s parents, saying that he would trade places with their son if he could.

In addition, Banks said he agreed to a plea bargain because there was a question of the admissibility of the blood evidence, which would be used to prove blood-alcohol level.

When Churchill asked what was wrong with the blood evidence, Banks said he couldn’t remember, but he thought it had something to do with the calibration of an instrument.

Bernstein, however, explained that the problem was with the chain of custody, procedures used at the State Patrol crime lab and the sample itself. Had the case gone to trial, she said, the blood evidence may have been thrown out.

Friday, Detective Scott Whitman with the State Patrol said he wasn’t aware of any problem with the blood evidence and hadn’t spoken with Banks about it.

“I thought there wasn’t going to be any deals in this case unless it was under the DUI prong,” he said. “That was my understanding, but I don’t ultimately make those decisions.”

Churchill said she knew that Whelchel had originally planned to plead guilty to the impaired driving prong of vehicular homicide when, at the last minute, the attorneys realized that state law adds a mandatory two years to a vehicular homicide sentence if it involved impaired driving.

Churchill said Banks and Bernstein met with her in chambers and asked if she would accept a sentence recommendation of two years less than the standard range set by the Legislature. She told them that she couldn’t agree to a “pre-sentence” outside of court.

Instead of taking their chances before Churchill, Banks and Bernstein simply crossed out the part of the vehicular homicide definition involving impaired driving. Whelchel pleaded guilty to vehicular homicide by way of reckless driving, but agreed to an exceptional sentence two months above the standard range.

Churchill was obviously perturbed at Banks. She addressed the general public and what she characterized as a misconception about the power of judges to send bad guys away.

“You need to understand I have no discretion,” she said. “The discretion lies with the prosecutor.”

Afterwards, Banks said Churchill did indeed have discretion to hand Whelchel an exceptional sentence larger than the additional two months, as Whelchel had stipulated that there was cause for an exceptional sentence.

But that would probably have resulted in an appeal, Banks admitted.