Code CrR 8.3(b) or CrRLJ 8.3(b) holds the Government Accountable for Their Late Actions
As a criminal defense attorney in Vancouver, Clark County, WA that handles a wide-variety of criminal defense cases ranging from: Attempted Murder, Vehicular Homicide, Felon Strike Offenses, DUI, Domestic Violence Offenses, Sexual Assaults, Drug Offenses, Theft and other criminal defense matters. In my experience, I have seen the State prosecution do things in the late stages of moving a case to trial that puts the defense in the position of having to choose to be adequately prepared or keeping their current trial date. For some people, this can be an agonizing decision, especially if a case has been pending for quite a while.
Fortunately, Washington law recognizes circumstances where mismanagement was so egregious on the part of the prosecution that dismissal or suppression of evidence is an appropriate remedy for the court to hand out to hold the prosecution accountable. In Superior Court, the rule is CrR 8.3(b). CrR 8.3(b), which permits the dismissal of a case for prosecutorial misconduct, and reads as follows:
The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
In District Court, the rule is found at CrRLJ 8.3(b). The rule states,
(b) On Motion of Court. The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
Case Dismissal as an Extraordinary Remedy
Now to be clear, Washington law recognizes that a dismissal of a criminal case is an extraordinary remedy, and the trial court should only use it “as a last resort.” State v. Wilson, 149 Wash.2d 1, 12, 65 P.3d 657 (2003) (emphasis added). Further, Washington trial courts should consider “ ‘intermediate remedial steps' ” before ordering the extraordinary remedy of dismissal. Id. (quoting State v. Koerber, 85 Wash.App. 1, 4, 931 P.2d 904 (1996)). The Washington Supreme Court has stated that “[d]ismissal is unwarranted in cases where suppression of evidence may eliminate whatever prejudice is caused by governmental misconduct.” State v. Marks, 114 Wash.2d 724, 730, 790 P.2d 138 (1990) (citing City of Seattle v. Orwick, 113 Wash.2d 823, 784 P.2d 161 (1989)); accord United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). The following is an excerpt from a Motion To Dismiss I brought before the court in a case that was going to trial.
The present case has been going on since 2-28-16. There have been multiple continuances in this case for a variety of reasons. However, most of them relate to uncooperative State witnesses and the need for the defense to interview them before trial and the unavailability of State witnesses; though the Defense continued this case due to interpreter issues. It is in this backdrop that we have literally the week before the Readiness Hearing to have a new witness added to the State’s witness list who will provide evidence for the State and against the defendant in the case. The defense must once again choose between the defendant’s right to be fully prepared and/or his right to speedy trial, after he has already demanded a trial last month but was forced to continue this case due to the unavailability of the State’s witnesses. The critical point is that there is no reason that this is happening only because of the mismanagement of the State. The State could have asked Officer X to test fire the alleged gun months ago and then provided that information to the defense, who would have then been able to factor this into their trial strategy and decide if an expert is needed to evaluate that evidence. Instead the defense was surprised by this witness, in violation of the Omnibus Order and CrR 4.7 (7)(i) and must again choose between adequately prepared or speedy trial due to the mismanagement of the government.
The Washington Supreme Court interpreted CrR 8.3(b) in State v. Michielli, holding that “governmental mismanagement satisfies the ‘misconduct’ element [of 8.3(b)].” 132 Wn.2d 229, 243, 937 P.2d 587 (1997).
In Michielli, the state’s late action forced the defense to waive the defendant’s right to speedy trial or proceed unprepared. The court found that this late action by the state prejudiced the defendant and satisfied the misconduct element of 8.3(b). Id. at 245. Specifically, the court held that “Defendant was prejudiced in that he was forced to waive his speedy trial right and ask for a continuance to prepare for the surprise charges brought three business days before the scheduled trial.” Id. at 244. Finally the Court opined that “Defendant's being forced to waive his speedy trial right is not a trivial event. . . . The State's delay in amending the charges, coupled with the fact that the delay forced Defendant to waive his speedy trial right in order to prepare a defense, can reasonably be considered mismanagement and prejudice sufficient to satisfy CrR 8.3(b).” Id. at 245. The court affirmed the trial court’s dismissal of the case with prejudice pursuant to 8.3(b). Id. at 246. The facts in this case are analogous to Michelli. If the mismanagement did not involve an evidentiary issue the defense would request a dismissal of the entire case because of the similarities between this case and Michelli However, as this is an evidentiary issue, based upon the aforestated case law, we believe that suppression is appropriate under CrA 8.3(b) and CrR 4.7 (h)(7)(i).
The defense prays that the court will suppress the testimony of Officer Janisch based upon the mismanagement of the State we believe in violation of CrR 8.3(b) and CrR 4.7(h)(7)(i).
While the motion was denied and we ultimately won the case in it’s entirety, if we would have lost the case, this would have been an good appellate issue that may have garnered the client a new trial or even outright dismissal. A good criminal defense attorney never fails to use a viable legal issue for the benefit of his or her client. Even if the trial court won’t act, it doesn’t mean an appellate court wouldn’t act later on. If you ever have a case where the prosecution in Washington State Court pulls some last-minute shenanigans, then a motion to dismiss or suppress under CrR 8.3(b) or CrRLJ 8.3(b) may be just what you need to hold them accountable.
Nicholas "Nick" Wood - Law Office of Nicholas Wood, P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark's Northwestern School of Law in Portland, Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.