I previously wrote about how some prosecutors in Washington State attempt to make plea negotiations as objective as possible. And I also criticized the City of Seattle Attorney’s Office for deciding to charge William Wingate with a crime before viewing the in car video. Well, how do prosecutors decide when and when not to charge someone with a crime? Is there an objective process to follow, like there is with plea negotiations? There are numerous laws and ethical guidelines that provide guidance on when a crime should and should not be charged. But before outlining those laws, I first want to discuss the grand jury process, or lack thereof in Washington State.
Other states require a grand jury in order to charge a person with a felony offense. A grand jury is a jury of citizens who are presented with evidence of a crime and decide whether criminal charges should be brought. While Washington State does not prohibit grand juries, a prosecutor is also allowed to charge both misdemeanor and felony offenses by direct filing. In other words, Washington prosecutors can elect to charge someone without having to convince the citizens (i.e. the grand jury) that the charge is warranted and instead, can charge a person with a crime with a flick of a pen. In practice, prosecutors elect to use their direct filing power instead of a grand jury process essentially 100% of the time (why employ a check on your power when you don’t have to?). In short, Washington prosecutors have much more power over the citizens than prosecutors in other states. So it is particularly important for Washington State prosecutors to objectively analyze each case before making a charging decision.
The Rules of Professional Conduct (RPC), are the ethical rules that all attorneys in Washington State must adhere to. RPC 3.8(a) orders prosecutors to not prosecute a charge unless there is probable cause for the offense. The American Bar Association (ABA) also publishes rules for all attorneys in the US to follow. Although these rules are not necessarily binding on attorneys in Washington State, it is still considered a good idea to follow these guidelines. ABA Standard 3-3.9 concurs with RPC 3.8(a) and also adds that a prosecutor should not charge an offense without sufficient admissible evidence to convict. So for instance, if the prosecutor knows that the police performed an illegal search, they should not charge the offense even if the evidence suggest a crime was committed. A prosecutor has broad discretion to charge some but not others guilty of the same crime so long as the selection was not “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984).
For felonies, the Sentencing Reform Act (SRA), codified in RCW 9.94A, also offers guidance. RCW 9.94A.411 states that “[a] prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.” RCW 9.94A.411 requires that “[t]he prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.” Applying this statute to Mr. Wingate’s case, one has to ask why he was charged before review of the in car video?
There are obviously situations where a prosecutor might want to charge someone with an offense before the entire investigation is complete. For instance, if an alleged murdered is apprehended, the prosecutor may want to charge the alleged murder right away to insure they are held in custody (and cannot flee) even though the full investigation is not complete. RCW 9.94A.411 takes this into account and lists reasons why a prosecutor may chose to charge before a complete investigation, such as “[t]he suspect presents a danger to the community or is likely to flee if not apprehended.” In Mr. Wingate’s case, these exceptions do not seem to apply.
RCW 9.94A.411 lists a number of reasons a prosecutor can chose to not prosecute a crime even though technically, the person may have committed a crime. The list is long, so read the statute for every permissible exception. But applying the statute to Mr. Wingate’s case, you could argue that he should not have been charged because the conviction “would not serve any significant deterrent purpose” and the offense was “de minimis” (a fancy legal word for not a big deal). RCW 9.94A.411 is applicable to felonies, and not necessarily to misdemeanors. But most prosecutors would agree that the standards listed in RCW 9.94A.411 are equally appropriate for misdemeanor offenses. And finally, RCW 9.94A.401 makes it clear that the charging standards listed in the SRA and RCW 9.94A.411 “are intended solely for the guidance of prosecutors.”
Another great resource for prosecutor charging discretion is the Washington Association of Prosecuting Attorney’s (WAPA) Quest for Justice Manual and Charging Manual. These manuals are a must read for any prosecutor in Washington State.