Monthly Archives: February 2015

Prosecutor Charging Standards in Washington State

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.

What do you mean I can’t have a copy of my own police report?

You’ve been charged with a crime, hire an attorney, and make an appointment to go over the police reports with that attorney. At the conclusion of the meeting, you ask the attorney if you can have a copy of the police report to share with your friends, family, employer, or whoever else you think should have an opportunity to read the police reports. The answer your attorney is ethically required to give to you is, “due to court rule CrRLJ 4.7(g)(3), I am prohibited from giving you a copy of the discovery, i.e. the police report in this case.” Huh? Yes, there is a court rule that says your attorney cannot give you a copy of the police reports, assuming they received the police reports from the prosecutor as discovery in the case. The rule makes sense for serious felony cases like murder and sex offenses. In a murder case, the discovery may contain the address and phone numbers for the witnesses and the court doesn’t want the defendant to go whack all the witnesses. In a sex offense, the discovery may contain something illegal (like child porn) and the court doesn’t want the defendant to have a further opportunity to exploit the victim. But in more simple criminal cases, like a DUI, this rule makes no sense. The good news is there are some easy ways to get around this rule. First off, the rule itself says your attorney can give you a copy of the discovery if the prosecutor and court agree to it. So you can always make the request to the judge. Also, the defendant (or any person for that matter) can make a public records request to the law enforcement agency requesting the police report. If your attorney obtained the report via a public records request or a DOL hearing on a DUI case, your attorney can provide the report to you without violating the court rule, since the court rule only applies to “discovery” provided by the prosecutor. And finally, while the rule says the attorney must maintain “exclusive custody” of the material, you can always read the police report in your attorney’s office, and take very detailed notes about the police report. Just another court rule that is dire need of an update.

Want a bench trial instead of a jury trial? Think again

Everyone knows that if a person is charged with a criminal offense, he or she has a right to a jury trial. But what if the person does not want a jury trial and instead wants the judge to decide if he or she is innocent or guilty? A judge trial is referred to as a bench trial, so a single person (the judge) decides the defendant’s fate rather than the jury (six or twelve random people depending on whether the offense is a misdemeanor or felony). Most people would rather have a jury trial, than bench, because the jury must be unanimous in order to convict. So all the jurors must agree that the defendant is guilty rather than just one (the judge). Jurors might feel more sympathy for a defendant than some cranky, jaded, judge. But depending on the circumstances, there are some situations where a bench trial might be advantageous. This could be true if there is a particularly complicated legal defense, and the defendant believes the judge is more likely to understand the defense. Also, a bench trial is much shorter than a jury trial because picking a jury takes time (multiple days for complex cases), and the trial itself goes much faster if a jury is not involved. If the defendant is paying a private attorney for trial, it could be cheaper for the defendant do a bench trial rather than a jury trial. Moreover, if the defendant wants to appeal the trial court’s legal decision to the next level, a bench trial can give the defendant the record needed to appeal, without the cost and time of a jury trial.

So a person has decided that for whatever reason, a bench trial makes more sense. Does the person have a right to a bench trial? If the charge is DUI, the answer is most likely no! The reason is that for misdemeanor offenses filed in District Court, there is a court rule that allows a prosecutor to demand a jury trial. That rule is CrRLJ 6.1.1(b). For whatever reasons, prosecutors in King County and other jurisdictions routinely demand a jury trial on a DUI charge, and sometimes, on all charges. I have never quite understood why the prosecutors demand a jury trial on DUI charges, or any charge for that matter. A bench trial is shorter and therefore costs the taxpayers less money. I would think the government would be excited that a defendant wants a less costly trial? It is possible that prosecutors believe defense attorneys will get the trial set with a particularly sympathetic judge. Ironically, on more serious felony charges, the prosecutor does not have the ability to demand a jury trial on the case. CrR 6.1, the Superior Court equivalent of CrRLJ 6.1.1, requires the defendant to file a written waiver of the right to a jury trial, and leaves it up to the trial court whether to allow a bench trial on a particular case. Prosecutors demanding jury trials on DUI charges does not look to end any time soon.

Why jail booking photos in Washington State cannot be found on the internet

There are some entertaining celebrity booking photos available on the internet. For instance, here’s Nick Nolte after his 2002 DUI arrest in California:

Nick Nolte mugshot

These celebrity booking photos are posted on the internet because in some States, booking photos are considered a public record. There are several unsavory internet businesses that capitalize on this law threatening to publish a person’s booking photo online unless the person pays them a fee. If the person gives in to the extortion demands, there will inevitably be another web site that threatens to do the same thing. In other words, once posted, it is essentially impossible to remove the person’s booking photo from the internet.

Fortunately, Washington State does not consider booking photos to be public records. Specifically, RCW 70.48.100 states that “the records of a person confined in jail shall be held in confidence.” The statute lays out several exceptions, such as a court order directing the release of the record. Since the booking photo is taken within the jail and is used for correctional purposes, it is considered confidential under this law. So unlike citizens in other states, those arrested for a crime in Washington state do not have to worry about their booking photo appearing on the internet. Keep in mind that while a booking photo is not available to the public, the record of arrest, conviction, and the police reports are available to the public and can be posted on the internet.

If you do find a Washington State booking photo on the internet, please contact me. I am not convinced that every jail in Washington honors RCW 70.48.100 and some may be unlawfully releasing booking photos to the public.